Opinion
January 25, 1907.
Robert C. Beatty and Selah B. Strong, for the appellant.
Francis A. Winslow, for the respondents.
The action is to recover from the defendants penalties for selling grouse or partridges without having given the bond prescribed by section 27 of the Forest, Fish and Game Law (Laws of 1900, chap. 20, added by Laws of 1903, chap. 291 and amd. by Laws of 1904, chap. 580 and Laws of 1905, chap. 335).
The defendants are engaged principally in the wholesale fish business. One of their salesmen received a box alleged to contain seventeen partridges, which is claimed to have come from the State of Rhode Island, and which was delivered at defendants' place of business. Immediately thereafter the box with its contents was delivered to a firm of poultry and game dealers, and a sales slip reading "8½ pr Pats 2.25 per 19.12" was made out, and on presentation by defendants the money was paid to them.
From the record it is apparent that there was no serious controversy on the trial that the box contained partridges. In any event the plaintiff made prima facie proof that such was the fact, and it was immaterial whether the birds were killed in this State or in a foreign one. ( People v. Weinstock, 117 App. Div. 168, decided herewith.)
The real issue litigated was whether the defendants were guilty of selling, individually or as agents, within the meaning of the statute. This question under the proofs was one for the jury to pass upon, and not for the court. The defendants' contention is that they did not sell the partridges, but that they merely acted as delivery and collecting agents for a brother-in-law of one of the defendants, who lived in Rhode Island and dealt in game birds. Whether, if this was all they did, it would be a justification to them or not, we do not feel called upon at this time to determine. On a retrial, which we conclude must be ordered, the jury may find that there was an actual sale by the defendants either as individuals or as agents for another, and this question thus be eliminated.
Of course, the fact that the defendants might have acted as agents for another, who was a non-resident, in making the sale could not relieve them from liability as selling agents. If it could the statute would become practically inoperative, for sales would always be conducted in this manner. Even if the mere acting as delivery and collecting agent for a foreign seller does not render a person liable under the statute, which question we do not decide, still it is manifest that acting or claiming to act in that capacity cannot be used as a shield against the statute or as a mere subterfuge to evade its penalties.
There being a question for the jury to determine the nonsuit was error, and a new trial must be granted.
The judgment is reversed and a new trial granted, with costs to the appellant to abide the event.
PATTERSON, P.J., INGRAHAM, McLAUGHLIN and LAMBERT, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event. Order filed.