New-York tribune., 1903-02-12
GAME OUT OF SEASON.
STATE LAWS SUSTAINED.
Court Of -4ppeaIs Decision in tho
Cold Storage Case.
TBr TELEGRAPH TO THE rRrRrxr.1


possession Of game out Of season. The decision,
while not wholly in favor of the State sustains
the provisions OF the Fish and Game law pro
hibiting the possession of certain game out of
season.
The action is known as The People Of the
state OF New-York agt. Jacob V. Bootman and
Howard r. Robinson" The penalties which the
State seeks TO recover are s.. .16s.315. While the
matter reached the Court of Appeals ques
lions of law which raised by the attorney
for the accused before the actions were tried
the decision settles the law in the case. and
sends the matter back to the trial term, with
she determination that the complaint of the
state constituted a sufficient cause of action.
De Witt c Middleton, of Watertown. the
Forest, Fish and Game Commissioner, said to-
night: The decision simply clears the way for
the State TO begin suit to collect penalties.
Nr Middleton said he really knew but little
about the case. It was being managed by
The attorneys for the State, Black. Olcott,
,;ruber & Bonynge. of New-York-
1t is difficult to determine the amount Of the
penalties for the alleged possession OF game dur
ing the close season which might be collected
If the State wins Its cases against various hrn1s
which have game stored in the storage ware
house where the game was discovered in New
York for the Court of Appeals has ratified parts
Of the decision Of the lower courts and not other
j.
fclest protector. said to-day: The persons de-
Tending these suits viii seek to avoid paying
any penalties by putting forward law points
The action was begun against BOotman ana
Robinson on August IS. 1901 An amended
complaint was afterward filed 10y the attorneys
for the State, hasing the cause Of action on
nineteen separate counts for an alleged unla"-
yul possession Of game out Of season 1t was
alleged that there were 1876 grouse and go
quail. entailing 4 penalty of S1S,36o- There were
nineteen separate collections Of birds enumer-
7tea as in the storage warehouse. There were
other persons besides Bootman and Robinson con-
cerned but The complaint was pressed against
them as a test case The attorneys for the &C
,,ysed persons demurred to the complaint on the
ground that II did not state the cause Of action
and also that the court had no jurisdiction
The case was brought 10 trial before Judge
o'Gor1nan. of the Supreme Court, who decided in
favor Of the accused on the counts from four
teen 10 nineteen inclusive, taking the position
HAT Sections XXX and AAAIII of the Game
law could not he reconciled. This decision, II
sustained would release the plover. snow
bunting reed birds an5 snipe as factors in the
case. Judge O'Gornan also decided that an
offender against the game law IS liable both
,rininaIIy and civilly and that possession during
The close season is evidence of violation OF the
law. An appeal was then taken TO the Court Of
Appeals.
The Court Of Appeals has decided the case
without opinion but answered the following
specific questions submitted to It by the Ap-
Eellste Division first department, as follows:
Frzt-Do counts / TO -. inclusive. constitute
a sufficient cause Of action? Ye[
Second-Is the plaintiff entitled TO r1aintain
civil action 70 recover penalties under Section
- Of the Fish and Game law for a violation
of any Of the provisions of Article II of the
T1T7s 4lf 7g-hi is z IA
Thirds the complaint defective in Tot al
1cging that the various birds were taken in the
State Of New York? Nc
Fourth-Are suficient facts to form :. cause Of
acton stated in counts Il 10 10, inclusive? NO
T-ifth-Can the defendants he made able un-
der Section 33. Of the Fish and Game law as
.-raended by Chapter Al, of the Laws Of 1901,
and Section 50 OF said act? No
Fv this decision the provisions of the law pro
hIi Iiting the possession of game out of season,
- hether taken in OF out Of the state are upheld.
Ce5Inse1 for tho state and the defendant
talked last night about the case Of the Arctic
Freezing Company Henderson Peck, Of No. 135
Vest 0ue-hUndred- and -fourth-st-, who repre-
seuts the interests OF the State said:
This case first came up in August, 1901. It
IS an action by the State of New-York against
Jarob Y. Rootu1an and Howard Robinson who
Constitute the Arctic Freezing Company. to re
cover penalties imposed by the Forest. Fish and
Came Commission for having grouse. quail
voodcock snipe and snow bunting during the
closed season.
The complaint had nineteen counts. Thirteen
or them charged the defendant with violating
sections - and 1S of the Game laws by having
duck. grouse. quail and woodcock. The
remaining six counts charge them with
having ployer snipe, reed birds and snow bunt-
n2 The defendants demurred 10 the complaint
ou the ground that civil action would not lie
ro recover the penalties. The demurrer was over
ruled as to the first thirteen counts of the com
plant and sustained as to the remaining six
counts or the ground of an irreconcilable re
puguancy IN sections 30 and 50 Of the Forest
Fish and Game laws This was tried before
Judge O'Gornlan. Both sides appealed from his
decision. and took the case to the Appellate Di-
vision. The people have sustained the demurrer
10 the last six counts of the complaint. The Ap-
fcllate Division affirmed Judge OGorman's
Judgment Both sides then appealed to the
Co'Irt of Appeals. There the judgment of Judge
O'Gorman was again confirmed
The real effect Of the judgment" continued
Nj Recb. is that plover snpe. reedbirds and
SNOW bunting were not protected under the law
- it stood in 1901 Rootmsn and Robinson viii
noH have to answer and stand trial the
penalties charged ia the first thirteen counts"
Iacob Y Roo}mzu referred the reporter to his
laayer. Julius Gnenharh. who. with Louis
Marshall hos conducted tho case
Tho cfreci of th, demurrer said Mr. Often
lsrh has been 80 knock oft some $S0ooo0 from
tho 81 ."oo"oo involved. The balance is to ho
tough; out Arter the Court Of Appeals sends
.. r~nlittitgr and an order entered it, then the
'.ef.ndants VIII have time in which 10 answer
iha; part of the complaint T." why the Dc
murr4r w1s ovarruled. Governor Oden emhod-
ed in hs message y 1907 recommendation