
    State Board of Pharmacy, Appellant, v. Barney Mishking, Respondent.
    (Supreme Court, Appellate Term,
    January, 1910.)
    Druggists — State regulation — State Board of Pharmacy — Continued under Consolidated Laws.
    Health — Health regulations and offenses — Vio'ation of orders and regulations— Penalties for violation — Right to recover penalties incurred prior to Consolidated Laws.
    The right to recover penalties incurred for violation of the Public Health Law prior to the enactment of the Consolidated Laws is .preserved.
    The State Board of Pharmacy under the Consolidated Laws is but a continuation of the former board with all its powers.
    Appeal by the plaintiff from a judgment of the Municipal Court of the city of Hew York, borough of Manhattan, third district, rendered in favor of the defendant.
    Steiner & Petersen (Joseph H. Kohan, of counsel), for appellant.
    Ginzburg & Picker, for respondent.
   Lehman, J.

The plaintiff made a prima facie case, entitling it to the recovery of a penalty for the violation of the Public Health Law. At the close of plaintiff’s case, the defendant moved to dismiss the complaint, on the ground that this action was commenced for violation of chapter 667 of the Laws of 1900, and this law was repealed in February, 1909. Decision was reserved and the defendant then rested. The trial justice thereafter rendered judgment dismissing the complaint on the merits.

Upon this appeal the respondent practically concedes that, by section 31 of the Statutory Construction Law (Laws of 1892, chap. 677) and sections 93 and 94 of the General Construction Law (Laws of 1909, chap. 27), the right to maintain an action for a penalty which accrued before the Consolidated Laws went into effect was saved and may be asserted, enforced and prosecuted thereafter. The statute is absolutely clear on this point. The respondent, however, claims that there is no plaintiff in existence to maintain the action; that the Board of Pharmacy, created by the Laws of 1900, chapter 667, went out of existence upon the enactment of the Public Health Law of 1909 (Laws of 1909, chap. 49). This contention is absolutely untenable. The Law of 1909 was practically a re-enactment of the Law of 1900. Section 230 of chapter 49 of the Laws of 1909 evidently contemplated not the formation of a new board, but the legal continuation of the old board. There was no change of personnel, of organization, or of substantial powers. It specifically provides for the election of members only at the expiration of the terms of the members of the state board of pharmacy now in office.” Moreover, the Legislature has carefully guarded against any possible interpretation of the statute as now contended for by the respondent by section 95 of the General Construction Law and by chapter 596 of the Laws of 1909.

The judgment should be reversed and a new trial ordered, with costs absolute to the appellant.

Giegerich and Dayton, JJ., concur.

Judgment reversed and new trial ordered.  