
    The People of the State of New York, Respondent, v. Harrison Street Cold Storage Company, Appellant.
    First Department,
    May 6, 1910.
    Pleading — amendment ¡-4- when validity of new defense not determined on application to amend — Forest,. Fish and Game Law — illegal ■ storage of game.
    Where a defense sought to be interposed by an amended answer is clearly frivolous the court may deny the motion on the ground that it does not constitute ' a defense. But otherwise the amendment should not he disallowed on that theory. The merits of the defense presented by the amendment should be left for determination at trial in order that the defendant may have .an opportunity to offer evidence to establish the defense and to take exceptions to adverse rulings thereon, which he may review on an appeal from the judgment.
    Thus, a cold storage company sued for the statutory penalty for the illegal possession of game, should be allowed to amend its -answer to allege that the People had already recovered penalties from the persons who stored the game with the defendant, and that the birds were contained in sealed packages, falsely labeled, which were stored by the defendant without knowledge of the fact that they contained game birds, etc. This, hecaus.e there is yet no decision making1 a cold storage company liable under such circumstances.
    Appeal by the defendant, the Harrison Street Cold Storage Company, from-an order of the 'Supreme Court, made at'the New York Special Term and entered in the office-of the clerk of 'the county of New York on the 28th day of March, 191.0, denying the defendant’s motion for leave to serve an amended answer.
    
      Franh F. Blaólcwell, for the appellant.
    
      James G. Graham [William Chilvers with Mm on the.brief],for the respondent.
   Laughlin, J.:

This action is brought to recover penalties aggregating the sum of $147,435, for violations of the Forest, Fish and Game Law. The complaint charges in six counts that within certain specified periods, being the closed season during the year 1909, the defendant unlawfully and knowingly had in its possession certain game birds and fowl in violation of the provisions of chapter 24 of the Laws of 1909 (Consol. Laws, chap. 19), known as'the Forest, Fish and Game Law, without having given the bond prescribed in section 241 of said chapter. The original answer interposed was a general denial. The defendant is, as its name implies, a cold storage company. It appears that, pending this action, the People settled actions against the defendant’s customers who stored the game birds and fowl with the defendant, which actions were brought to recover penalties on account of the possession by the defendants in those actions of the same birds and fowl as are charged in this action to have been possessed by the defendant; judgment for the same amount was demanded there as here and the penalties were by said settlement recovered by the plaintiff. The defendant, on ascertaining these facts, moved to amend its answer by pleading as a separate defense the recovery of said penalties against its customers who owned and stored the game birds and fowl and the compromise and settlement of the actions for the said alleged violations of the statute; and by further alleging that the game .birds and fowl were contained in barrels, boxes and kegs, securely closed, covered and marked or tagged, showing that they contained domestic fowl and meat, and that they were received and stored by the defendant in the names of the persons who delivered the same to the defendant, without notice or knowledge of the fact that they contained game, birds and fowl, in violation of the statute, and that the defendant believed that .the packages were correctly labeled, and had no authority _ to open and inspect the same.

The motion to serve the amended answer was denied on the theory that the new matter incorporated therein would not constitute a defense to the action. Where a defense sought to be interposed by an amendment is clearly frivolous the court may properly deny the motion on the ground that it would not constitute a defense, but otherwise the amendment should not be disallowed on that theory, and it should be left to the trial court to pass upon the merits of the defense presented thereby in order that the defendant may have an opportunity to offer evidence to establish the defense and of taking an exception to an adverse ruling thereon, which he may review on an appeal from the judgment. (Mitchell v. Allen, 25 Hun, 543; Everett v. Everett, 48 App. Div. 475; Paddock v. Barnett, 88 Hun, 381; Montgomery v. Boyd, 63 App. Div. 190; Thilemann v. Mayor, etc., 71 id. 595; Michigan Steamship Co. v. American Bonding Co., Nos. 1 &2, 109 id. 55; Haskell v. Moran, 118 id. 810.) Tlie learned counsel for the People contends that it is wholly immaterial whether the defendant knew or did not know the contents of the packages, and that the allegations of the complaint charging knowledge on its part should be regarded as surplusage. These contentions maybe sound, but no decision within this jurisdiction has been cited authoritatively deciding that the provisions of law in question require or should receive a construction which will, under any and all circumstances, render the possessor of game birds or fowl during the closed season liable for penalties, even though he be innocent and may have been induced to receive them by fraud and deceit and may have exercised the care which a prudent man would have exercised to avoid being innocently led into a violation of the law. The judicial construction of the .statute with' respect to what possession will constitute a violation of the law remains to be developed. The agricultural cases are not decisive of the question. There the penalty was imposed for selling milk below the standard prescribed by the Legislature, and a person who saw fit to engage in the _business of dealing in mük was required, at his peril, to see that the milk conformed to the standard prescribed by law.; and, therefore, whether or not it had been adulterated or the vendor knew that it was under the standard was immaterial, because he was bound at his peril to determine before vending it. (People v. Kibler, 106 N. Y. 321; People v. Bosch, 129 App. Div. 660; People v. Snyder, 90 id. 422.) Surely every innocent and involuntary, possession of game, which could in no manner affect tlie public health, would not subject the possessor to penalties. It may be that common carriers and other bailees for hire must at their peril make, a minute inspection of every package or parcel received for transportation or storage to avoid violating the law; but since the question has not been authoritatively decided, without expressing any opinion thereon, we think that the defendant should be allowed to serve the amended pleading, in order that there may be no question with respect to its right to review any adverse ruling on the alleged defenses presented by the amended pleading.

It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements to the appellant, and tlie motion granted on payment by the appellant of costs in the action to be. taxed.

Ingraham, P. J., Clarke, Scott and Miller, JJ., concurred.

Order reversed, with ten dollars ■ costs and disbursements to appellant, and motion granted on payment by appellant of the costs in the action to be taxed.  