The People of the State of New York, Appellant, v. Simon Wolf, Respondent

The People of the State of New York, Appellant, v. Simon Wolf, Respondent. Second Department, April 20, 1906. Game Law.— pike bought in close season from licensed dealer — action for penalty — no burden on defendant to show that such fish were caught without the State — when no recovery for resale/ When in an action for a penalty for having in possession pickerel and pike in. the. close season, the defendant has proved that he purchased the fish from a bonded dealer licensed to sell fish caught without the State under Laws of 1905, chapter 314, he is under no obligation to show that the fish were actually caught without the State. Under a complaint charging only the “possession ” of such fish, there can be no recovery on the ground that the defendant resold them. Appeal by the plaintiff, The Peoplé of the State of New York, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county-of. Suffolk on the 25th day of November, 1905, upon the decision of the court, rendered after a trial at the Suffolk Special Term, dismissing the. complaint upon the merits. Selah B. Strong, for the appellant. C. F. Goddard, for the respondent. [MAJORITY — Rich, J.:] Rich, J.: The action was brought to recover -the penalty provided by section 69 of the Forest, Fish and Game Law (Laws of 1900, chap. 20, as amd. by- Laws of 1904, chap. 583) for possessing: wall-eyed pike and pickerel, contrary to' the provisions of section 47 of that statute* as.amended by chapter 314 of the Laws of .1905. The latter section provides that pickerel and wall-eyed and yellow pike shall not be taken or possessed from March first to April thirtieth, both inclusive, “provided that during the close season any person-may buy, possess or sell pickerel or pike, taken without the. State' if such person shall have a license from the commission so to do,” issued after a bond has'been given approved and. conditioned as in such section provided, and further provided “that any person purchasing Sharing the close season of a dealer giving such bond may possess the same. The cause of action is limited, by the allegations of the complain, to the “possession” of thirty-two wall-eyed pike and ten' pickerel during the close season by the defendant, he not having a license and not having given the bond required by the section referred to, The answer denied . the alleged unlawful possession and averred that all wall-eyed pike and pickerel possessed by defendant during the ' time covered by the allegations, of the complaint were taken without the State of Hew York and were, purchased by him of a dealer who had duly given the bond and obtained the license provided for by said section 47. It was Stipulated upon the trial that Mizel & Brownell, wholesale fish dealers in the borough of Manhattan, had given a bond and procured a license authorizing them to sell pike and pickerel Under the provisions of section 47, and. the defendant testified,, without contradiction, that he purchased the fish at. the Fulton market of Mizel & Brownell at, their regular sidewalk public auction. It was shown upon the trial that the defendant sold several of the. fish. The learned trial justice found, however, that the question of the resale of the fish purchased by defendant from a licensed dealer was not involved in the action. In this he was clearly right. Upon .the pleadings as they stood, no question based upon the selling of fish was before the court, and evidence of such sales having been made did not establish the plaintiff’s right to a recovery. Judgment' against the defendant was authorized only upon evidence" of an unlawful “ possession.”' The complaint was dismissed upon the merits. We think the findings are supported by the evidence, and the exceptions thereto are without merit. The contention that the defendant was bound to prove that the fish in his possession were taken without the State is not well founded. It overlooks the provision of the statute which makes the possession of such fish lawful when purchased of a licensed dealer during the close season. It was not necessary for the defendant to prove' more than that the fish were purchased from such a dealer. The rule contended for would make it incumbent upon every person purchasing fish from licensed dealers, for family consumption, to provide himself with proof that the specific fish purchased was taken without the State of ÍTew York, a construction of the statute not warranted, an.intolerable hardship, and not within the intention of the lawmakers. The judgment must be affirmed, with costs. Hirschberg, P. J., Hooker, Gaynor and Miller, JJ., concurred. Judgment affirmed, with costs.