
    Yonkers Society for the Prevention of Cruelty to Children v. The City of Yonkers.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 9, 1887)
    
    Municipal corporation—Yonkers (city of)—Cruelty to children— Society for prevention of, entitled to fines—Laws 1876, chap. 122—Laws 1881, chap. 184.
    The plaintiff prosecuted certain cases for the violation of laws relating to or affecting children, which resulted in the accused persons being fined. The judge of the city court of Yonkers paid the money received from said fines into the city treasury. He'd, that while the said judge is required to pay the money so collected into the city treasury, by chapter 184, Laws 1881, that the money is not given to the city, but by Laws 1876, chapter 122, is given to the plaintiff, and that they were entitled to recover it in an action for money had and received against the city.
    A case agreed upon and submitted under Code Civil Procedure, sections 1279, 1280 and 1281.
    
      Matt. H. Ellis, for pl’ff; Joseph F. Daly, for deft.
   Barnard, P. J.

The plaintiff is an incorporated society under chapter 130, Laws of 1875, with power to make complaints for the violation of law “ relating to or affecting children.”

Under this power the society made the complaints, and the accused persons were convicted and fined. The fines were paid by the court into the treasury of the city of Yonkers. By section 5, of chapter 122, Laws of 1876, it is provided as follows:

“All fines, penalties and forfeitures imposed and collected in any county in this state under the provisions of this and of every act passed, and which may be passed, relating to or affecting children in every case where the prosecution shall be instituted or conducted by a society incorporated pursuant to the provisions of chapter 130 of the Laws of 1875, being “An act entitled an act for the incorporation of societies for the prevention of cruelty to children,” shall, except when otherwise provided, inure to such society in aid of the purposes for which it was incorporated.

Under this section it is clear that the plaintiff is entitled to the fines unless the legislature “have otherwise provided.” By the charter of the city of Yonkers, chapter 184, Laws' of 1881, it is made the duty of the city judge of Yonkers to pay all fines imposed and collected by him into the city treasury. Section 10.

The claim under this provision is that the legislature intended to give the fines in question to the city. There is no necessary conflict between the acts.

The fines may be paid into the city treasury and still inure to the society for the protection of children. The charter simply does not permit the city judge to pay the fines to the plaintiff society. He is required to pay all" fines over, with a report of the subject of the fine " for what received.” The money is not given to the city in terms, and by the law of 1876 it is so given to the children’s society.

The portion of the fines whieh inure to the plaintiff reach .the city treasury, and an action for money had and received will lie. The defendant has no right to hold the same as against the plaintiff. Bank of the Commonwealth v. Mayor, 43 N. Y., 184.

The fine for selling strong drink to a child belongs to the plaintiff. The offense is'one “relating to children.” The offense is created to protect children, and a license to sell intoxicating liquors is no protection from it, because of the tender age of the child.

The society was intended to protect them from wrongs like this.

There should be judgment for the plaintiff upon the submitted case, with costs.

Dykmann and Pratt, JJ., concur.  