124 N.E. 118 | NY | 1919
This action was brought to recover a penalty for the alleged violation of section 185 of the Conservation Law (Cons. Laws, ch. 65) by defendant through refusal to exhibit a license permitting him to hunt.
The provisions of the statute on which the prosecution rests and under which the question presented to us is to be decided provide as follows: "Hunting and Trapping License. Subdivision 1.License required. No person or persons shall at any time hunt, pursue or kill with a gun any wild animals * * * or engage in hunting or trapping except as herein provided without first having procured a license so to do * * *.
"Subdivision 8. Exception. Provided that the owner or owners of farm land, and their immediate family or families occupying and cultivating the same, or the *47 lessee or lessees thereof and their immediate family or families who are actually occupying and cultivating the same, shall have the right to hunt, kill and take game * * * on the farm land of which he or they are the bona fide owners or lessees, during the season when it is lawful to kill and take the same, without procuring such resident license."
The plaintiff in its pleadings did not negative the fact that defendant was one of the persons described in the last provision of the statute and a motion having been made to dismiss the complaint as not alleging a cause of action the question has been and is presented whether with that failure it is sufficient. The determinative inquiry in this connection has been whether the provisions in favor of the persons described in the last quoted provision of the statute constitute an exception to the general scope of the statute or a proviso withdrawing them from the effect of the statute and thus constituting a defense to be pleaded. We think that they constitute, as in fact they are specifically labeled, an exception and that, therefore, it was necessary for the People in the complaint to negative the fact that defendant came within the exception. (Rowell v. Janvrin,
COLLIN, CUDDEBACK, CARDOZO, POUND, McLAUGHLIN and ANDREWS, JJ., concur.
Judgment affirmed.