(78 Hun, 40.)

#### AMERICAN SOC. FOR PREVENTION OF CRUELTY TO ANIMALS v. CITY OF GLOVERSVILLE.

(Supreme Court, General Term, Third Department.

May 26, 1894.)

Cruelty to Animals—Fines—To Whom Payable.

Pen. Code, § GG8, providing that all fines for cruelty to animals shall be paid to the society for the prevention of cruelty to animals, is not expressly repealed by a city charter (Laws 1890, c. 55, tit. 9, § 10) which requires the recorder to pay “all fines” over to the chamberlain, and is therefore still in force, since, by section 728, no provision of the Penal Code can be repealed by implication.

Controversy between the American Society for the Prevention of Cruelty to Animals, as plaintiff, and the city of Gloversville, as defendant, submitted on an agreed statement of facts, under Code Civ. Proc. § 1279. Judgment for plaintiff.

Argued before MAYHA.M, P. J., and PUTNAM and HERRICK, JJ.

Horace Russell (Jabish Holmes, Jr., of counsel), for plaintiff.

Edgar A. Spencer, for defendant.

MAYHAM, P. J.

The stipulation of facts submitted on this action shows that the plaintiff is a domestic corporation, organized, under the laws of this state, to prevent cruelty to animals, under Chapter 469 of the Laws of 1866, with some of its powers and duties regulated and defined in chapter 375 of the Laws of 1867, chapter 12 of the Laws of 1874, section 668 of the Penal Code, and chapter 490 of the Laws of 1888. The defendant is a municipal corporation organized under the provisions of chapter 55 of the Laws of 1890. On the 21st of August, 1891, a fine of five dollars was imposed upon, and collected of, one Lewis Messer, by the recorder of the city of Gloversville,—the defendant; and on the 29th of October of the same year a fine of eight dollars was imposed by the same magistrate on, and collected from, Thomas Hughes. Both fines were imposed and collected for violations of the Penal Code relating to cruelty to animals. The proceedings in which both these fines were collected, were instituted and prosecuted by the plaintiff, and when the fines were recovered by the magistrate they were, respectively, demanded of him by the plaintiff, and by him refused; and the money collected was paid by the magistrate to the city chamberlain of the defendant, who credited it to the police fund of the defendant. After such payment the plaintiff presented a duly-verified claim for such money to the common council of the defendant, which refused, and still refuses, to pay the same to the plaintiff. Upon these facts the opin*258ion and decision of this court is asked. The plaintiff claims the money under the provisions of section G68 of the Penal Code, which is as follows:

> “All fines, penalties or forfeitures imposed or collected for a violation of the provisions of this title, or of any act for the prevention of cruelty to animals now in force or hereafter passed must be paid on demand to the American Society for the Prevention of Cruelty to Animals, except where the prosecution shall be instituted or conducted by a society for the prevention of cruelty to animals duly incorporated under the general laws of this state, in which-case such fine, penalty or forfeiture must be paid on demand to such society.”

This provision of the Penal Code, unless the same has been, in express terms, repealed or modified by some subsequent act of the legislature, seems to be controlling. But it is insisted that the provision of the Penal Code above quoted antedates that of the act incorporating the city of Gloversville, and as the charter of that city contains in itself ample authority to deal with all violations of law, of this character, it amounts, in effect, to a repeal, so far as that city is concerned, of this provision of the Penal Code; and, in support of that contention, we are referred to section 10 of title 9 of chapter 55 of the Laws of 1890. That section requires the recorder to make and file a monthly statement of all fines and penalties imposed and collected by him, and to pay the same over to the chamberlain. While this provision, in the absence of any qualifying provision of law, authorizes and supports the contention of the defendant, it does not amount to an express repeal of the provisions of section 668 of the Penal Code. At most, it would be but a repeal by implication. But such repeal is expressly forbidden by the last section of the Penal Code. Section 728 of that Code provides as follows:

> “No provision of this Code or any part thereof, shaU be deemed repealed, altered or amended by the passage of any subsequent statute inconsistent therewith, unless some statute shall explicitly refer thereto, and directly repeal, alter or amend this Code accordingly.”

With this positive provision of law upon this express subject, we do not see how we can hold that the city of Gloversville is entitled to these penalties, or can claim to hold the same, against the express provision of the statute, which says that such penalties “must be paid on demand to the American Society for the Prevention of Cruelty to Animals.” That provision relates to these prosecutions anywhere in the state, and must, in the absence of any express provision of statute to the contrary, be deemed to apply to the city of Gloversville. The case of Village of Gloversville v. Howell, 70 N. Y. 287, is not an authority against this conclusion.

With the policy of this law, discussed by the learned counsel for the defendant, we have nothing to do. His argument may be sound, if addressed to the legislature, upon that subject, but we are only called upon to declare what the law is. As the plaintiff was entitled to this money on demand from the magistrate, when it was in his hands, we see no reason why the plaintiff should not, after demand by the plaintiff of it, be entitled to recover it in an action. Let the judgment be entered in favor of the plaintiff against the defendant, with costs. All concur.