People v. Warner — 116 A.D. 863

Majority

p. 863

The People of the State of New York, Respondent, v. John P. Warner, Appellant.

Second Department,

January 25, 1907.

Headnote

Forest, Fish and Game Law — carrying away oysters — evidence of lease from municipality—conviction reversed.

In a prosecution for taking away oysters lawfully planted by another in violation of section 124 of the Forest, Fisli and Game Law, a lease of the oyster bed to the complaining witness by the town of Southampton, which was void is r not admissible in evidence, anti a conviction based upon such evidence will be reversed.

Under such circumstances a conviction cannot be sustained on oral evidence of another lease given to the complaining witness and claimed to have been lost, because the jury may not have found thatouch lease ever existed.

Hooker, J., dissented.

Appeal by the defendant, John P. Warner, from a judgment of the County Court of Suffolk county, entered in the office of the clerk of the county of Suffolk on the 17th day of March, 1906, affirming a judgment of the Court of Special Sessions of the town of Southampton, which convicted the defendant of violating section 124 of the Forest, Fish and Game Law (Laws of 1900, chap. 20, as amd. by Laws of 1903, chap. 475).

Charles M. Stafford, for the appellant.

George H. Furman, for the respondent.

It is made a misdemeanor by section 139 of the Forest, Fish and Game Law (ch. 20, L. 1900) to violate section 124 of that law, which forbids any person to “ take, carry away, interfere with or disturb oysters * * * of another lawfully planted or cultivated,” and it is of this that the defendant was convicted. To prove that the oysters the defendant took and carried away from a bed in Tiana Bay, town of Southaihptóri, Long Island, were the lawfully planted oysters of Squires, a.lease by the trustees of the freeholders and commonalty of the tow-n to Squires dated Juné 10th, Í902, of the said bed to plant oysters on it, was allowed, in evidence, for the" town owns the lands under water within its limits. The defendant’s exception thereto is good. The lease was void. Ai the annual town meeting in 1897 it was voted that the said trustees should no longer lease the bottom under the waters of the town for oyster planting; and at' the annual town meeting in 1901 the question whether such leases should be made was voted in the negative. The town'.meeting had the power to make this regulation in respect of the use of town lands (Town -Law, sec. 24; IE. S. p. 340, sec. 6)."

Squires gave oral evidence of a prior lease to him in writing by the trustees for a term of five years with a right of renewal to him. for five years, and which he claimed to have lost; but the' jury may not. have found that such a lease ever existed. Moreover, there is no evidence that it was given prior to the town meeting of "1897. He says it was given in 1898.

The judgment of the County Court and. of the Court of Special Sessions should be reversed.

Hirsohbbrg, P. J., Jenks and-Miller, JJ., concurred; Hooker, J., dissented.

Judgment of the County Court of Suffolk -county and of the Court of Special Sessions reversed.