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and 120 New York State Reporter where it states that neither of the commissioners named should have been a party plaintiff, as neither of them has any legal capacity to sue ; that is, as is claimed, no legal capacity to sue for the cause of action stated in this complaint Viewed in that light, it would appear that there has been a sufficient compliance with the provision requiring the defect relied upon to be pointed out to raise the question of a misjoinder of parties plaintiff. The defect is that under the law these commissioners have no right to sue in their names as commissioners for the cause of action stated in the complaint, and therefore they should not have been joined with their respective towns as plaintiffs, and that, having been so joined, there is a misjoinder of parties plaintiff. When the allegation of want of capacity is regarded as a reason for the misjoinder, and not as a separate ground of demurrer, the pleading as a whole is sufficiently specific, we think, in pointing out the particular defect relied upon, to require us to consider the question of misjoinder on its merits.

It is alleged in the complaint that the plaintiffs' commissioners are given control of the bridge in question and the approaches thereto by virtue of Laws 1889, p. 7, c. 7. That act was an amendment to Laws 1867, p. 534, C. 280, and the last-named act was one to amend Laws 1859, p. 359, C. 143, entitled “An act for a free bridge over the Mohawk

The amendment of 1889 provided that “hereafter the said free bridge and the approaches thereto shall be under the control and direction of the commissioners of highways of the towns of Canajoharie and Palatine, * * *

* * and the costs and expenses of maintaining said bridge and approaches and keeping the same in repair shall be borne equally by said towns of Canajoharie and Palatine.” Prior to that amendment, as a reference to the legislation referred to shows, the bridge had been in control of the trustees of the villages of Canajoharie and Palatine Bridge. The former village is at one end of the bridge, in the town of Canajoharie, and the latter village is at the other end of the bridge, in the town of Palatine. Prior to the amendment, as well as afterwards, the expenses of maintaining the bridge and approaches and keeping the same in repair were borne by the towns of Palatine and Canajoharie. It is clear that the only purpose and effect of the amendment of 1889 was to take the control of the bridge in question from the trustees of the two villages, respectively, and to place such control in the commissioners of highways of the respective towns of Canajoharie and Palatine. The bridge formed a part of the highway between these two towns.

Among the general powers of highway commissioners in towns under the highway law (Laws 1890, p. 1177, C. 568) is “to have the care and superintendence of the highways and bridges therein” (section 4, P. 1178). That law also provides that “when such bridges are constructed over streams or other waters forming the boundary line of towns, either in the same or adjoining counties, such towns shall be jointly liable to pay such expenses.” (Section 130, page 1201.) The words "control and direction” in the amendment of 1889 to the local law have, I think, no broader significance with reference to the duties and powers of the commissioners of highways of the two towns in question than have the words “care and superintendence” in the highway law with reference to the duties and powers of commissioners of highways in the towns of the state. In either case the commissioners of highways are officers or agents of the towns, charged with the duties and clothed with the power specified under these laws, and the commissioners, who are plaintiffs, were vested by the amendment of 1889 to the local law only with like powers and duties as were conferred by the general law upon commissioners of highways with respect to highways and bridges in towns. The bridge in question was maintained by the two towns at their joint expense, and the plaintiff commissioners, as officers of these towns, respectively, were simply their agents under the law in the control and direction thereof, and any suit which they were required to bring with relation to an encroachment upon the bridge should, therefore, be brought in the same way as any suit in relation to highways under the care and superintendence of commissioners of highways.

A town is now a municipal corporation (Town Laws, Laws 1890, P. 1211, C. 569), and the town law (section 182, p. 1237) provides that actions or special proceedings for the benefit of a town, including an action to recover damages for injury to the property or rights of a town, shall be in the name of the town. More than this, the highway law in section 15, page 1181, in relation to actions for injuries to highways, provides that “the commissioners of highways may bring an action in the name of the town against any person or corporation to sustain the rights of the public in and to any highway in the town, and to enforce the performance of any duty enjoined upon any person or corporation in relation thereto.

Regardless of what the law formerly was, which permitted commissioners of highways to prosecute certain actions in their own name of office, the cause of action stated in this complaint can, as the law now stands, only be prosecuted by the commissioners of highways in the name of the towns of which they are officers. That an action to recover damages for the destruction of a bridge was properly brought in the name of the town was decided by this court in Town of Fort Covington v. U. S. & C. R. R. Co., 8 App. Div. 223, 40 N. Y. Supp. 313, and which decision was affirmed in the Court of Appeals (156 N. Y. 702, 51 N. E. 1094).

The judgment overruling the demurrer should be reversed, with costs, and the demurrer sustained, with costs. All concur, except SMITH and HOUGHTON, JJ., who dissent.

(90 App. Div. 422.)

PEOPLE v. SNYDER et al.

(Supreme Court, Appellate Division, Fourth Department. January 12, 1904.)

1. JUDGMENT-CONVICTION OF CRIMINAL OFFENSE-ACTION FOR PENALTY-BAR.

Laws 1900, p. 66, c. 20, $ 229, prohibits the burning of fallows during certain periods of the year, and prescribes that any person violating the section "is guilty of a misdemeanor, and in addition thereto is liable for a penalty.” Code Civ. Proc. $ 1899, provides that civil and criminal prosecutions do not merge. Held, that an acquittal in a criminal prosecution for violation of section 229 was not a bar to an action by the people for the penalty prescribed.

and 120 New York State Reporter 2. SAYE-PREVIOUS CONVICTION.

Where a statute punishes an act as a misdemeanor, and also imposes a penalty therefor, it is not necessary to obtain a conviction before suing for the penalty.

Williams and Stover, JJ., dissenting in part. Appeal from Special Term, Lewis County.

Action by the people of the state of New York against Adelbert Snyder and another. From a judgment dismissing plaintiff's complaint as to defendant Snyder, and from an order denying a new trial on the minutes, plaintiff appeals. Reversed.

Argued before McLENNAN, P. J., and SPRING, WILLIAMS, HISCOCK, and STOVER, JJ.

C. S. Mereness, for the People.
Ryel & Merrell, for respondents.

SPRING, J. The defendant and one Van Aernam were sued for a penalty in burning a fallow in violation of section 229 of the forest, fish, and game law. Chapter 20, p. 66, Laws 1900.

Chapter 20, p. 66, Laws 1900. The record shows that the defendant Snyder had been indicted, tried, and acquitted for the same acts which constituted the cause of action. Upon the presentation of the record of acquittal the complaint was dismissed as to him, and the jury acquitted Van Aernam. The people appeal only from the judgment of dismissal, and the single question up for review is whether the judgment of acquittal is a bar to the action by the people to recover the penalty which the section provides.

Section 229, after prohibiting the burning of fallows, stumps, etc., during certain periods of the year, prescribes: “Any person violating any provision of this section is guilty of a misdemeanor, and in addition thereto is liable for a penalty of three hundred dollars.” Two distinct remedies are allowable against one violating the provisions of this section of the act-one to obtain the punishment of the offender for committing a misdemeanor, and the other a civil action to recover the penalty. This method of double punishment of offenders guilty of misdemeanors has long been much in vogue by various statutes in this state. For instance, chapter 628, p. 405, Laws 1857 (Excise Law); section 21, c. 534, p. 587, Laws 1879 (fishing out of season); section 19, c. 183, p. 343, Laws 1885 (deception in sales of dairy products).

At the outset it will be noted that the conviction or acquittal in the criminal action would not be conclusive against one who has sustained damages by the acts which compose the criminal charge. From the early history of the state this has been made so by. statute. Newton v. Porter, 5 Lans. 416-423. The Code of Civil Procedure, in a sweeping section (section 1899), provides that civil and criminal prosecutions do not merge. See, also, sections 8 and 13, as to criminal contempts.

The contention here, however, is founded largely upon the facts that the two remedies are prosecuted in the name of the people, and the suit for the penalty is quasi criminal in character. They are, however, entirely independent, and one is a criminal and the other a civil action. The rules governing the trials in the two cases are dissimilar. In the

12. See Penalties, vol. 39, Cent. Dig. $ 18.

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criminal action the evidence must satisfy the jury of the guilt of the defendant beyond a reasonable doubt. The taking of the evidence of a nonresident witness by commission at the instance of the people is not permissible in a criminal prosecution. The manner of eliciting proof is more restricted, and the district attorney in presenting the case to the jury.must keep in a more narrow groove than the counsel in a civil action. People v. Fielding, 158 N. Y. 542-547, 53 N. E. 497, 46 L. R. A. 641, 70 Am. St. Rep. 495; People v. Milks, 55 App. Div. 372, 66 N. Y. Supp. 889. The jury, without any departure from the strict letter of the law or from any misapprehension of the evidence, might acquit in a criminal action, and upon the same proof, and with equal propriety, render a verdict for the amount of the penalty.

The authorities in this state, as far as our research has extended, are uniform in holding that the two actions are not at all dependent upon each other. In People v. Rohrs, 49 Hun, 150, 1 N. Y. Supp. 672, the action was to recover penalties pursuant to “An act to prevent deception in the sale of dairy products. The act made the offender guilty of a misdemeanor punishable by fine or imprisonment, and in addition thereto that he should forfeit and pay a penalty of $500. The statute, it will be observed, is almost identical with the one under consideration. The defendants offered to prove that the defendant Rohrs had been tried and acquitted for the offense set out in the complaint, but the evidence was excluded. Upon appeal the court sustained this ruling, saying at page 150, 49 Hun, page 672, 1 N. Y. Supp.:

“The parties to the criminal proceeding were the people, the plaintiffs in this action, and Rohrs, one of the defendants in this action. The question litigated in the criminal proceeding was whether or not Rohrs had violated the statute. It was judicially determined that he had not done so. It would seem, therefore, that the very question to be tried in this action had already been litigated between the parties, and determined in the defendant Rohrs' favor. The difficulty, however, in holding that the result in the criminal proceeding estopped the people from trying the question of Rohrs' violation of the statute in this action arises from the fact that, if Rohrs had been found guilty in the criminal action, the record in that action would not have been evidence against Rohrs in this action, and, therefore, because of the want of mutuality, no estoppel can arise."

In People v. Stevens, 13 Wend. 341, the defendant was indicted for selling liquor without a license. He pleaded in bar a judgment in a civil action for a penalty for the same offense. The district attorney demurred to the plea, and it was held bad by the court of sessions, and upon appeal the judgment sustaining the demurrer was affirmed. The court say at page 342:

"It is undoubtedly competent for the Legislature to subject any particular offense both to a penalty and a criminal prosecution; it is not punishing the same offense twice. They are but parts of one punishment. They both constitute the punishment which the law inflicts upon the offense. That they are enforced in different modes of proceeding, and at different times, does not affect the principle. It might as well be contended that a man was pun. ished twice when he was both fined and imprisoned, which he may be in most misdemeanors.'

In People v. Meakim et al., 133 N. Y. 214, 30 N. E. 828, the court quoted the above excerpt from the Stevens Case approvingly (page 224, and 120 New York State Reporter 133 N. Y., page 830, 30 N. E.), and an analysis of the authorities is there given, and the conclusion reached that the two remedies may be followed, and the adoption of the one is not exclusive of the other. Blatchley v. Moser, 15 Wend. 215, Rollins v. Breed, 54 Hun, 485, 8 N. Y. Supp. 48, and Behan v. People, 17 N. Y. 516, are along the same line. The text-books announce the same principle. Greenleaf

86 N.Y.S.-27

on Evidence, $ 537; Wharton on Evidence, § 777; Am. & Eng. Ency. of Law, vol. 24, p. 831 (2d Ed.).

We are aware that the contrary principle has been maintained in Coffey v. U. S., 116 U. S. 436, 6 Sup. Ct. 437, 29 L. Ed. 684; but as the policy of the courts of our own state has been so consistent and uniform in the direction indicated we feel bound to follow them. The chief reason urged by the United States Supreme Court for the adoption of the doctrine that the two remedies cannot both be pursued is that the suit for the penalty is in effect criminal in its character. As has been seen, that principle does not obtain in our state, but the action for a penalty is treated like any other civil action.

In Stone v. U. S., 167 U. S. 178, 17 Sup. Ct. 778, 42 L. Ed. 127, the Coffey Case was in a measure limited. The Stone Case was an action of conversion, and the defendant Stone had been acquitted on an indictment in the United States District Court for the same offense which was made the basis of the civil action, also prosecuted in the name of the United States. The defendant pleaded the judgment of acquittal in bar of the civil action, but the court of last resort held against him. After distinguishing the Coffey Case, the court said at page 188, 167 U. S., page 782, 17 Sup. Ct., 42 L. Ed. 127:

“The rule established in Coffey's Case can have no application in a civil case not involving any question of criminal intent or of forfeiture for prohibited acts, but turning wholly upon an issue as to the ownership of property. In the criminal case the government sought to punish a criminal offense, while in the civil case it only seeks, in its capacity as owner of property illegally converted, to recover its value. In the criminal case his acquittal may have been due to the fact that the government failed to show beyond a reasonable doubt the existence of some fact essential to establish the offense charged, while the same evidence in a civil action brought to recover the value of the property illegally converted might have been sufficient to entitle the government to a verdict. Not only was a greater degree of proof requisite to support the indictment than is suflicient to sustain a civil action, but an essential fact had to be proved in the criminal case which was not necessary to be proved in the present suit. In order to convict the defendant upon the indictment for unlawfully, willfully, and feloniously cutting and removing timber from lands of the United States, it was necessary to prove a criminal intent on his part, or at least that he knew the timber to be the property of the United States."

The action for a penalty is a civil one, pure and simple, and the question of the defendant's intent is not a necessary feature of the plaintiff's case. People v. Kibler, 106 N. Y. 321, 12 N. E. 795; People v. Laesser, 79 App. Div. 384, 79 N. Y. Supp. 470. The plaintiff made his prima facie case by proving the defendant burned the fallow within the prohibited period. Whether done negligently, with malicious intent, or in a spirit of sport, is unimportant. If the maintenance of the action depended upon proving the defendant set the fire maliciously or with intent to do damage to his neighbor, the statute might be nullified.

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