APPEAL by the defendant, The Long Island Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk on the 7th day of January, 1911, upon the verdict of a jury rendered by direction of the court, as amended by an order entered in said clerk's office on the 11th day of January, 1911, and also from an order entered on the 3d day of January, 1911, denying the defendant's motion for a new trial made upon the minutes.
Joseph F. Keany, Timothy M. Griffing and James W. Treadwell, for the appellant.
Charles M. Stafford, for the respondent.
The appeal involves a recovery of penalties in the sum of $32,200 for violations of the Forest, Fish and Game Law (Laws of 1900, chap. 20, as amd. by Laws of 1904, chap. 590, § 5 [now Laws of 1909, chap. 24, § 72], as amd. by Laws of 1910, chap. 476), whereof section 228 provides: 'Every railroad company shall on such part of its road as passes through forest
lands or lands subject to fires from any cause, cut and remove from its right of way along such lands at least twice a year, all grass, brush and other inflammable materials. * * * Any railroad company failing or neglecting to comply with any of the provisions of this section * * * shall be liable to a penalty of one hundred dollars for each day that it continues a violation thereof.' The complaint alleges that defendant's railroad 'at all the times hereinafter mentioned passed, through forest lands and lands subject to fires, between the stations known as Syossett and Wading River. * * * That, during each of the years 1904, 1905, 1906 and 1907 there grew and was upon said right of way of defendant, along said forest lands and lands subject to fires, grass, brush and other inflammable materials, together with accumulations thereof grown and accumulated in preceding years,' which the 'defendant failed and neglected during each of said years and down to the commencement of this action in 1907, to cut and remove or in any way remove from its said right of way along said forest lands and lands subject to fires,' and that by reason of such violations the defendant became and is liable to a penalty of $100 for each day for two years immediately preceding the commencement of this action, amounting to $154,600. The verdict was for $100 for each day from July 30, 1905, until the end of that year, and $100 a day from July 16, 1906, until the end of that year, the plaintiff waiving recovery for later penalties and precluded by the Statute of Limitations from recovering earlier penalties. The evidence is not returned, but there is a statement that there was evidence to the effect that 'at all the times mentioned in the complaint herein, grass, brush, weeds, dead and dry brush, grass, weeds, leaves and other inflammable material grew and were and remained upon the right of way of defendant described in said complaint, and that at no time from January 1, 1904, to July 29, 1907, both inclusive, was the said grass, brush or other inflammable material either cut or removed from said right of way, but that the same were suffered to accumulate and be and continue upon said right of way during all that period; * * * that, at all the times hereinbefore stated, said part of defendant's railroad and right of way ran entirely through forest lands and
lands subject to fires from any cause. * * * Defendant, on its behalf, introduced evidence tending to controvert the evidence thus adduced by plaintiffs; but for the purposes of this appeal only the defendant waives any point as to the weight of evidence.' So it appears that if the statute is applicable, and so it has been decided herein (194 N.Y. 130), and is valid, as we conclude that it is, the plaintiff made proof that from January 1, 1904, to the commencement of this action on July 29, 1907, the defendant had violated the act. The court, among other things, submitted in its general charge the question of the neglect or failure to cut and remove the material, and also submitted certain special questions relating to the period of the year when the two cuttings were required by the statute in 1905 and 1906, and whether there was such cutting, and the verdict is based on such general and special findings. The jury found that in 1905 and 1906 the statute required cutting from the first to the fifteenth of July, and again from the first to the fifteenth of October, the court charging that the time of the first cutting could not be found to be prior to July first. The appellant urges that the penalty is by the statute limited to $100, but this does not accord with the ruling in Jones v. Rochester Gas & Electric Co. (168 N.Y. 65); Jones v. Rochester Gas & Electric Co., No. 2 (7 A.D. 474; affd. on opinion below in 158 N.Y. 678), while Griffin v. Interurban Street R. Co. (179 N.Y. 438; 180 id. 538) does not impair their force or applicability. The statute states plainly that the offender 'shall be liable to a penalty of one hundred dollars for each day that it continues a violation thereof.' But the first serious question is whether the statute is so uncertain in its provisions as to preclude the cumulative penalties, and if so, whether its failure to fix definite periods for its observance may be supplied by the findings of a jury. The statute requires that the material be cut twice each year. The jury has interpolated in the statute a mandate that the defendant should have cut first within two dates fifteen days apart, and again between October first and fifteenth, and these dates must be read into the statute, and, for the purposes of this action, made a part thereof. I will not discuss the variability of a statute that is in this way dependent upon the
consideration of changing juries acting upon differing states of fact. It intimates shifting statutory requirements permissive of grave injustice. It may be that the facts proven would be such as to show a non-compliance utterly irreconcilable with the purpose of the statute. But the statement of the evidence used on the trial of this action discloses the absence of essential facts. There is proof of the forbidden material, and failure to cut and remove it. But there is no evidence that the time to cut and remove it was limited in the first cutting to July fifteenth and in the second cutting to October fifteenth. Why not July sixteenth or seventeenth or eighteenth, or some later date, or October sixteenth, seventeenth or eighteenth, or some later date? It is true that there was evidence that such kind of material had been there uncut, unremoved and accumulating since 1904, but the recovery was not predicated on such earlier and continued neglect, but rather on a failure to act within two periods of some fifteen days each. It is assumed that the parties intended to make concessions broad enough to inform this court of the compass of the evidence, of what had been proven, and yet no facts relating to vegetable growth and the removal thereof for the purpose of guarding against dissemination, increase and decay, and ultimate danger of fire therefrom, are shown to have been presented to the minds of the jurors. Thus the jurors were left, so far as appears, to consider the defendant's statutory obligation from such personal knowledge as they had, and the statute amplified accordingly. It would be hazardous enough to leave the uncertainties of the statute to such varying definitions as jurors might furnish, but the peril to justice from such practice is increased when it appears that the jurors were enforced to rely upon their experience and information, if, indeed, they were at all informed on the subject. If proof amendatory of the statute may be tolerated, and that is not at present decided, it must be so strong and clear as to reveal definitely the unexpressed intention of the Legislature. The evidence shows that the defendant did not cut at all. It should have cut twice. The maximum penalties would be $200, and the judgment and order should be reversed and a new trial granted, costs to abide the event, unless the plaintiff within twenty days stipulate to reduce the recovery to $200, in
which case the judgment, as modified, and order should be ...