People v. Alden — 14 N.Y. St. Rep. 421

Majority

p. 421

The People of the State of New York, App’lts, v. John E. Alden, Resp’t.

(Supreme Court, General Term, Third Department,

Filed February, 1888)

Headnote

1. Game—Prosecutions for penalties under Laws 1883, chap. 317 — Fund to indemnify county against expenses of.

By Laws 1883, chap. 317, relative to protection of game, it is provided that all penalties for infraction of the game laws of the state shall be paid to the county treasurer, and that of all moneys thus paid into the county treasury over and above the amount necessary to reimburse the county for any outlays or expenses paid out by the county treasurer, and by the act, one half shall be paid to the state, and the other half to the game protector. Held, that this act had in view the creation of a fund for the in • damnification of the county against its costs, etc., which might be included in the actions brought to recover penalties under the act.

2 Same—Expenses of prosecutions under Laws 1883, chap. 317—Who LIABLE FOR.

Held, That the legislature had power to direct that a county in which game would be protected by the prosecutors authorized by the act should advance the necessary expenses, and look to the penalties for indemnification.

Charles R. Patterson, District attorney, for app’lts; S. & L. M. Brown, for resp’t.

We concur in the opinion of the learned justice at special term. The appellant, however, now presses a point not considered in that opinion, namely, that the judgment against the county of Warren is wholly unauthorized. But chapter 317, Laws 1883, provides that the penalties collected shall be paid to the county treasurer, and that “of all moneys thus paid into the county treasury over and above the amount necessary to reimburse the county for any outlays or expenses paid out by the county-treasurer under this act,” one-half shall be paid to the state and the other half to the game protector. Thus it was contemplated that a fund would be created sufficient to indemnify the county against its costs, etc., incurred by such prosecutions.

It was competent for the legislature to designate that a county in which game would be protected by such prosecutions, should advance the necessary expenses, and look to the penalties for indemnity.

If chapter 534 of the Laws of 1879 applies, then one-half the penalties recovered would belong to the county. Section 33.

In that case, the action would be prosecuted for the benefit of the county of Warren, and that county would

p. 422

be liable for the cósts under, Code of Civil Procedure, section 3243.

Order affirmed, with ten dollars costs and printing disbursements. .

Learned, P. J., and Ingalls, J., concur.