People v. Alden — 20 N.Y. St. Rep. 496

Majority

p. 496

The People of the State of New York, App’lts, v. John Alden, Resp’t.^[1]

(Court of Appeals,

Filed January 15, 1889.)

Headnote

Costs—Came laws—Action to recoves penalty—Defendant if successful ENTITLED TO COSTS UNDER CODE ClV. PRO., § 3343 — LAWS-1879, chap. 534—Laws 1880, chap, 531—Laws 1883, chap 317

Upon the dismissal of a complaint in an action to recover a penalty under the game laws, brought by the district attorney of a county the defendant is entitled to costs against the county The action is one to recover money or property for the benefit of a county within the purview of Code Civil Procedure, section 3343.

Appeal from an order of the supreme court, general term, third department, affirming an order of the special term directing the county of Warren to pay the defendant, costs in an action brought under the game laws for a penalty, wherein the complaint was dismissed.

Charles B. Patterson, district attorney, for app’lts; L. M, Brown, for resp’t.

The validity of the judgment for costs-' awarded against the county of Warren "on the dismissal of the complaint, depends upon section 3243 of the Code of Civil Procedure, that is to say, upon the question whether an action to recover a penalty under the game laws brought by the district attorney of the county is an action “to recover money or property or to establish a right or claim for the benefit of a county” within the purview of that section.

■ Section 33 uf chapter 534 of the act of 1879, for the preservation of game, makes it the duty of a district attorney to commence an action in the name of the people for the recovery of penalties given by the act, upon receiving, proper information, and awards one-half of the penalty received to the informer and the other half to the county in which the action is brought.

But the act makes no" provision for the recovery of costs by a defendant when the plaintiff fails in the action. The claim that section 6 of the act of 1880, chapter 531, prohibits the recovery of costs by a defendant where the action is brought by a district attorney in the name of the people, is not tenable.

That section permits a district-attorney to discontinue such an action, and in that case no costs or disbursements are recoverable by the defendant. But the section has no application where the suit proceeds to trial and the complaint is dismissed, or judgment is rendered in favor of the defendant. It rather furnishes an implication that in such cases costs are recoverable by a defendant. The game laws proceed on the assumption that a county has an interest in

p. 497

the preservation of game within its limits and in the enforcement of the laws for its preservation.

By the act of 1879, boards of supervisors are authorized to make regulations or ordinances for the protection of game within their respective counties (section 37); to levy a tax for the enforcement of the provisions of the act (section 35); to provide for the election of game constables in towns, who are authorized to prosecute for penalties, and makes the costs in suits so prosecuted where the plaintiff fails to recover, a county charge (section 38). These and other similar provisions indicate very plainly that the legislature regarded the county as an interested party.

Chapter 591, of the Laws of 1880, introduced an additional feature in the system of legislation for the protection of game by authorizing the appointment by the governor of a certain number of game ana fish protectors. This statute did not displace the prior legislation, but supplemented it. It requires the district-attorney of any county on the request of any game protector appointed under the act, to prosecute m the name of the people actions or proceedings for violations of the game laws, and requires the treasurer of the county on the requisition of the district-attorney to advance necessary witnesses’ fees and disbursements. It directs that the penalties and fines received and collected, shall be paid to the county treasurer of the county. But no part of the penalties received in an action brought upon information of a state game protector, can be retained by the county, as in suits prosecuted under the act of 1879, but they are to be paid by the county treasurer into the state treasury to the credit of the general fund, except that the county is authorized to retain sufficient thereof for its reimbursement for outlays and expenses incurred under the act.

By chapter 317, Laws of 1883, the act was amended by dividing, the penalty recovered between the informer and the state.

It does not appear from the record before us whether this action was brought on the information of a state game protector under the act of 1880, or not. If brought upon his information under that act, the county of Warren would not have been entitled to retain any part of the penalty, which might have been recovered therein against the defendant except to the extern necessary for reimbursement. If brought under the act of 1879, it would have been entitled to one-half of such recovery. But we think the action was brought for the benefit of the county of Warren within section 3243, of the Code, whether brought upon the information of the state game protector or of some other person. The statutes as we have said, assume that the protection of game and the enforcement of the game laws is a county interest. It imposes upon county officers the duty of bringing actions. It requires the county treasurer to advance

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from the county funds the necessary sums for disbursements and expenses. Whether the county is pecuniarily benefited or not by a recovery, a county interest is thereby protected. It would be very unjust to subject a defendant to costs in_ case of recovery by the people, and give him mo indemnity in case judgment is rendered in his favor. We think section 3243 may fairly be held to cover this contingency.

The order should be affirmed.

All concur.