
    George M. Warner, Respondent, v. Charles Palmer, Appellant.
    
      Penalty for the unlawful detention of milk cans— the provision as to the venue of an action therefor repealed Code of Civil Procedure, § 983, and is still in force — the prohibition of a change of venue is unconstitutional.
    
    Section 29 of the Domestic Commerce Law (Laws of 1896, chap, 376), which provides that the place of trial of an action brought to recover a penalty for the unlawful detention of milk cans “may be laid in the county where such owner, dealer or shipper resides at the time of the commencement thereof, and if laid in such county it shall not be changed for any cause,” repealed by implication, so far as it provides that the place of trial may be laid in the county where the owner of the milk cans resides, section 983 of the Code of Civil Procedure which provides that an action to recover a penalty must be brought in the county where the cause of action arose.
    The provision of said section 29, that if the venue is laid in the county where the owner, dealer or shipper resides, “ it shall not be changed for any cause,”" is unconstitutional and does not prevent the venue from being changed on the ground of the convenience of witnesses.
    Section 29 of the Domestic Commerce Law, which was passed April 23, 1896, and took effect October 1, 1896, and which expressly repealed chapter 401 of the Laws of 1887, as amended by chapter 25 of the Laws of 1890, entitled “An act in relation to milk cans,” was not impliedly repealed by chapter 977 of the Laws of 1896, which became a law May 28,1896, and took effect immediately, and which amended chapter 401 of the Laws of 1887, as amended by chapter 25 of the Laws of 1890, but did not make any reference to the Domestic Commerce Law and contained no provision whatever as to the county in which, the venue should be laid.
    
      Appeal by the defendant, Charles Palmer, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Schoharie on the 8th day of July, 1901, denying the defendant’s motion to change.the place of trial from the county of Schoharie to the county of Albany.
    
      Daniel J. Dugan, for the appellant.
    
      Lewis Cass, for the respondent.
   Edwards, J.:

This is an appear from an order denying a motion of the defendant to change the place of trial, from Schoharie county to Albany' county, on' the ground that Schoharie county is not the proper place of trial, and also on the. ground of the convenience of witnesses.

The action was brought to recover a penalty against the defendant for unlawfully having in his possession five milk cans belonging to the plaintiff and marked with his initials.

The answer admits that the plaintiff is a resident of Schoharie •county, and is a farmer and milk producer, and denies the other allegations of the complaint. '

The plaintiff resides in Schoharie county and the defendant in Albany county. The defendant served a demand for a change of place of trial, which was not acceded to, and thereafter made his motion. His contention is, that the action being to recover a penalty, it must, under the provisions of section 983 of the Code of Civil Procedure, be brought in the county of Albany, where the cause of action arose. This contention would be correct but for the provision of section £9 of the Domestic Commerce Law (Laws of 1896, chap. 376), which provides that “Such action may be brought in a court of record having jurisdiction thereof, and the place of trial thereof may be laid in the county where such owner, dealer or shipper resides at the time of the commencement thereof, and if laid in such county it shall not be changed for any cause.” In Bell v. Niewahner (54 App. Div. 530) it was held that the clause of the section which reads “ if laid in such county it shall not be changed for any cause” is unconstitutional, but that the remainder is valid. This act, therefore, so far as it provides that the place of trial may be laid in the county where the owner of the milk cans resides, repeals, by implication, the provisions of section 983 of the Code.

But the defendant contends that section 29 was repealed by implication by chapter 977, Laws of 1896, passed at the same session of the Legisature, and which became a law thirty-five days later. I do not think this contention is sound. The Domestic Commerce Law, passed April 23,1896, provided that it should take effect October 1, 1896, and expressly repealed chapter 401 of the Laws of 1887, as amended by chapter 25 of the Laws of 1890, entitled “ An act in relation to milk cans.” Chapter 977 of the Laws of 1896, which took effect immediately, is an amendment to chapter 401 of the Laws of 1887, as amended by chapter 25 of the Laws of 1890, and does not purport to amend the Domestic Commerce Law, nor to expressly repeal any portion thereof, nor does it make any reference to it. It repeals “ all acts or parts of act inconsistent ” with its provisions. That act contains no provision whatever as to the county in which the place of trial may be laid. There is not, therefore, any repugnancy or inconsistency between the two acts in respect to the county in which the place of trial may be laid, and the statute having been enacted at the same session of the Legislature, the provision of section 29, chapter 376, in that respect is for this reason in full force and effect. The venue, therefore, was properly laid in Schoharie county, and the motion to change on the ground that it was not the proper county was properly denied.

But I think that the defendant should have prevailed on his motion to change the place of trial, on the ground that the convenience of witnesses will be promoted by the change. The action was brought to recover a penalty on the ground, as alleged in the complaint, that, “in violation of the provisions of chapter 401 of the Laws of 1887, and the several acts amendatory thereto and supplemental thereto and without plaintiff’s permission, the defendant did unlawfully have in his possession or wider his control five of plaintiff s milk cans,” which were marked with plaintiff’s initials. The statute under which the action is brought declares it “ to be unlawful for any person or persons, without the written consent of the owner or owners, or shipper or shippers, to use, sell, dispose of, buy or traffic in any milk or cream cans belonging to any dealer or dealers or shipper or shippers of milk.” (Laws of 1896, chap. 977, .§ 1.) The mere possession by a person of milk cans marked with the initials of another is not a violation of the statute. Section 2 of the act makes such possession " presumptive evidence of the unlawful use, sale, purchase of or traffic in such can or cans.” Section 4. prescribes a penalty for having such cans in one’s possession “ in. violation of this act.” Although the language of the statute is somewhat obscure, it is evident that the intention of the statute was not to make the mere possession of the cans of another unlawful so as to subject to the penalty, but rather to make such possession presumptive evidence of that which is declared by the 1st section to-be unlawful; that is, the using, selling, disposing of, buying or trafficking in any of the cans of another marked with his initials» If there should be a trial under the pleadings, as framed, it would be competent for the defendant to show that his possession of the plaintiff’s cans was free from any wrongful purpose, and hot in violation of the statute. In other words, it would be competent for him to introduce such evidence as would explain his possession of the cans and rebut the presumption of the statute. ' It appears from, the defendant’s affidavit used on the motion that although he-, had possession of the cans referred to in the complaint, eleven, witnesses residing in Albany county were necessary and material to rebut the presumption of the statute, and to show that such possession was not in violation of the act which makes it. unlawful “ to use, sell, dispose of, buy or traffic ” in stick cans.. Such evidence would be competent and admissible on the trial, and the number of his witnesses residing in Albany county being larger than the number residing in Schoharie county, who will be necessary for the plaintiff, as appears by his affidavit, and the cause of action, if any, having arisen in Albany county, the place of trial, according to the settled practice, should be changed to the latter county.

The order should be reversed, with costs, and the motion granted, with costs to abide event.

All concurred.

Order reversed, with ten dollars costs. and disbursements, and motion granted, with ten dollars costs to abide event. 
      
      
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