
    GARDNER B. COTTON, Appellant, v. FREDERICK MAURER, Respondent.
    
      Action for penalty—not brought within one year—objection must be taken by ammer.
    
    Appeal from a judgment rendered in the County Court of Erie county, and from an order denying a new trial.
    The action was originally brought in the Justice Court, to recover penalties given by statute for cattle running at large on the highways. The justice rendered a judgment for the defendant, and on appeal to the County Court the action was retried.
    The plaintiff proved that the defendant’s cattle were running at large on the highway in 1871. The action was commenced August 24, 1872. The chief question was, whether the plaintiff could recover penalties for acts which occurred more than one year before the commencement of this action. The judge ruled that he could not, and so charged the jury. This court held that the objection that the action was not commenced within the time limited, could only be taken by answer, and that such objection not having been taken by the answer in the case, the plaintiff was entitled to recover.
    
      Thomas Gorlett, for the appellant.
    
      JE. Thayer, for the respondent.
   Opinion by Smith, J.

Present—Mullin, P. J., Smith and Gilbert, JJ.,

Order and judgment reversed, and new trial granted, with costs to abide the event.  