People v. O'Neil — 28 N.Y. St. Rep. 37

Majority

p. 37

The People, Resp’ts, v. John O’Neil, App’lt.

(Supreme Court, General Term, Third, Department,

Filed December 11, 1889.)

Headnote

Penalties—Endoksement—Code Civ. Peo., § 1897.

Section 1897. Code Civ. Pro., requiring the summons in actions for penalties to be endorsed, is not limit, d to actions by private persons, but applies also to actions brought by the people.

Appeal from order of special term denying motion to set aside a summons for irregularity. The action was brought to recover certain penalties for violation of the game laws by the service of a summons only.

James C. Matthews, for appl’t; A. B. Gar denier, for resp’ts.

The action was brought by the people of the state under §§ 2 and 3 of chapter 577, Laws of 1888.

A motion was made to set aside the summons on the ground that it was not properly endorsed, as required by § 1897 of the Civil Code, and denied at special term, and this is an appeal from the order denying such motion.

It is not denied that if this is a case requiring an endorsement under said section of the Code the endorsement made was not a compliance with the statute.

• Section 1897 is contained in article 3, title 4, chapter 15 of the Civil Code, said article containing six sections, from 1893 to 1898 inclusive, and is entitled, “Action by a private person for a penalty. or forfeiture.”

It is claimed by respondent that the title limited the operation of § 1897 to actions by private persons, and that it does not apply to this action by the people, and that in fact no endorsement was necessary on the summons.

The statute has been construed as claimed by respondent at special term. See Townsend v. Hopkins, 9 Civ. Pro., 258, 261. A contrary construction of the statute has been held by the general-term of the New York common pleas in the Spoor v. Cornell, 12 Civ. Pro., 319. See also Mayor v. Wood, 25 N. Y. State Rep., 907: Young v. Gregg, 9 Civ. Pro., 262.

The first four sections of article 3, by their terms, apply to

p. 38

actions by private persons. Sections 1897 and 1898, in terms, are general, and apply to all actions, and were it not for the title there could be no doubt that § 1897 was applicable to the summons in this case. It can hardly be doubted but that the last section of the article, § 1898, applies to all actions, whether brought by the people, a public officer or a private person. The language is general, and the intent to apply to all actions for penalties, by whoever brought, is apparent.

In § 1897 the language is not limited to an action by a private person. The section says “m an action." It would be no stronger if it had said in every action. The plain meaning is, unless otherwise construed on account of the title, that in every action brought to recover a penalty or forfeiture there shall be an endorsement on the summons.

The question is not free from doubt, but we incline to believe the construction given to the section by the general term of the court of common pleas of New York is correct.

The title of an act is no part of it, although it may be used. to aid in discovering the design of the legislature. Jones v. Sheldon, 50 N. Y., 477 ; Brick v. Gannar, 36 Hun, 52 ; In the Matter, etc., of Middletown, 82 N. Y., 196 . But when the language of a statute is plain, and the construction apparent, the construction cannot be altered by the title. Matter of Middletown, supra.

In § 1897 there seems to be no ambiguity. It contains a general direction that in an action for penalties there must be an endorsement on the summons. By its terms it applies to all actions. Unless limited by the title, no question could be raised as to its construction. If limited by the title, the effect is by the title to change what otherwise would be the plain and unambiguous meaning of the section.

Again, § 1897 is a substitute for § 7, art. 1, title 8, chap. 8, part 3, Revised Statutes, which required the endorsement in all actions, and, although the phraseology of the present section differs somewhat from the former one, it should not be deemed that the legislature intended to change the existing and well settled law which required an endorsement on the summons in all actions, unless it clearly appears that such was the intent. See Douglas v. Douglas, 5 Hun, 140 .

Again, there is no reason why the defendant is not as much entitled to a notice of what the action is brought for and under what sections of the statute, when it is commenced by the people as when brought by a private person. He could not know the object of the action any more when the people is plaintiff than when an individual brings the action.

The object and intent of the legislature doubtless was that a defendant sued in these actions for penalties should at once be informed by the summons under what law and section of the law the action was commenced. The propriety of giving him that information applies in an action brought by the people as well as in one by an individual. It is reasonable to suppose that the legislature intended to make the section applicable to all actions by whomever brought.

p. 39

We conclude that § 1897 in terms applies to every action for penalties by whomev er brought, and that its force is not intended to be limited by the title, and hence that the order should be reversed with costs and printing expenses, and the motion made by the defendant to set aside the summons should be granted, with ten dollars costs.

Learned, P. J., and Landón, J., concur.