People v. Smith — 10 N.Y. Crim. 211

Majority

p. 211

Supreme Court-Oswega-Special Term.

January 23, 1892.

PEOPLE v. WILLIAM W. SMITH.

( 47 St. Rep. 170 .)

Headnote

Costs—Game law.

Where a party is sued for a penalty under the game laws, and costs are awarded to him, they should be given against the county, since such actions are prosecuted for its benefit under section 3243 of the Code.

' This action was brought in Lewis county by the district attorney of that county, under the direction of a state game protector, according to the provisions of chapter 577 of the Laws of 1888, to recover penalties for violations of the game laws, alleged to have been committed in Oneida county.

A verdict was rendered in favor of the defendant, who entered judgment for the taxed costs against Lewis county, which Justice Merwin, on motion at special term, struck out. Thereupon the defendant moved, at special term, before Justice Churchill, for an order to amend the judgment by awarding the costs against the plaintiffs, which was denied.

The defendant now moves for such an order against the county of Oneida.

Geo. F. Morss, for motion.

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Thos. S. Jones, dist. att’y, opposed.

The decision of this motion depends upon tEe answer to the question, was this action brought to establish a right for the benefit of Oneida county.

Section 3243 of the Code of Civil Procedure provides that “'in an action * * * brought in the name of the People of the state to recover money or property, or to establish a right * * * for the benefit of a county, * * * costs shall not be awarded against the People, but where they are awarded to the defendant, they must be awarded against the body for whose benefit the action * * * was brought.”

1The learned district attorney urges that, since the county of Oneida would not be entitled to any portion of the penalties in case of a recovery (the statute providing that the net proceeds shall be divided between the informant and the state), this action was not brought for the benefit of that county.

That is not the proper test. The main purpose of the prosecution of this class of actions is not the collection of penalties, but the establishment and enforcement of rights; in this case it was the protection of the people of Oneida county in the enjoyment and profit of the game within its borders. The penalty is only an incident, affording the informant a motive to complain of offenders. '

The idea of protecting county interests pervades the entire game law. The boards of supervisors are empowered to supplement the state laws by further provisions relating to their respective counties (chap. 212, Laws 1884); and it is the duty of the state game protector to enforce such supplementary provisions as well as the state laws (§ 2, chap. 577, Laws 1888).

, Judge Andrews, in People v. Alden, 112 N. Y. 120 ; 20 St. Rep. 496 , says: “The game-laws proceed on the assumption, that a county has an- interest in the preservation of game within its limits, and in the enforcement of laws for its preservation.” And on page 121 he further remarks: “Whether the county is pecuniarily benefited or not by a recovery, a county, interest is thereby protected.”

The statute reposes discretion in the state game protectors to cause the action to be brought in the county wherein -the unlaw

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ful act occurred, or in an adjoining county, as was done in this case; but the former county is the one for whose interest and benefit the right is sought to be established.

Motion granted, without costs.