People v. Wells — 14 N.Y. St. Rep. 647

Majority

p. 647

People of the State of New York, App’lts, v. Edwin Wells, Resp’t.

(Supreme Court, General Term, Fourth Department,

Filed January, 1888.)

Headnote

Yenue—Action for penalty under fish and game law—Laws 1886, CHAP. 194.

Where in an action brought under the fish and game laws of the state (Laws 1886, chapter 194) for the recovery of penalties for killing and having in possession wild deer or venison, it appeared that the offense was committed in Herkimer county, and that the defendant resided in said county. Held, that Herkimer county was the county in which the trial should take place.

Appeal from an order of the Herkimer special term, changing the place of trial from the county of Oneida to the county of Herkimer. Motion was made, after service of a demand that the place of trial be changed to the proper county. The motion was heard, upon reading the summons and complaint demand defendant’s affidavit; the affidavit of J. A. Steele.

Thomas S. Jones, district-attorney, for app’lts; Smith, Steele & Beckwith, for resp’ts.

Plaintiff’s complaint shows that the action is brought to recover five penalties, given by chapter 194 of the Laws of 1886. It is alleged that the defendant, in the town of Wilmurt, Herkimer county, “killed a wild deer, and had in his possession fresh venison, and had in his possession wild deer after the same had been killed,” and thereby incurred the penalties claimed.

Thus it appears that the causes of action mentioned in the complaint arose in the county of Herkimer.

Section 983 of the Code of Civil Procedure provides, an

p. 648

action for the recovery of penalties, “must be had in the county where the causes of action, or some part thereof, arose. ”.

Section 1 of chapter 194 of the Laws of 1886 provides that any violation of its provisions shall be misdemeanor, and that a penalty may be recovered, and that the person violating the provisions of the law may be proceeded against therefor in any county of the state in which the offense was committed, or in which the offender or prosecutor may reside or have an office for the transaction of business.”

So far as this provision of law relates to the place of trial of an action for a penalty, it must be construed in connection with section 983, which lays down the general rule.

The affidavits and papers used upon the motion do not bring this case within either of the exceptions to the general rule. It does appear that the alleged offender resides in Herkimer county, and it does appear that the cause of action arose in that county.

The cases of Leonard v. Ehrich ( 40 Hun, 460 ) and The People v. McDonald (8 N. Y. State Rep., 494) arose before the act of 1886.

We are of the opinion that Herkimer county is the proper county in which the trial should take place, and that the order of the special term was properly made.

Order affirmed, with ten dollars costs and disbursements.

Martin and Follett, JJ., concur.