I agree with my brother Thomas that the judgment in favor of plaintiff cannot "be sustained. While I concur in his opinion as to the sufficiency of the evidence in this case, I consider that the provisions of the statute forming the basis of defendant’s liability are so vague and indefinite as to preclude under any circumstances enforcing such liability to a greater amount than the sum of $100 for each calendar year. A penal statute is to he strictly construed. In my opinion this is a penal statute. The line of distinction between statutes which are to be strictly construed because penal, and those which are to be liberally construed because remedial, is not always easy of determination and definition. The Legislature has not, by express words contained in this statute, attempted to define the character thereof. It has been said that “ The legal distinction between remedial and penal statutes is this: that the former give relief to the parties grieved, the latter impose penalties upon offenses committed.” (Endl. Interp. Stat. § 333.) “Penal statutes are those by which punishments are imposed for transgressions of the law.” (Suth. Stat. Const. § 208.) “ The true test in determining whether a statute is penal is whether the penalty is imposed for the punishment of a wrong to the public, or for the redress of an injury to the individual.” (36 Cyc. 1181, 1182; Bay City & E. Sag. R. R. Co. v. Austin, 21 Mich. 390, 411.) Thus tested, it seems clear that the portion of the statute here under consideration is penal in its character. It is true that it has been held that the provisions of the statute here considered are riot limited to cases where a railroad is constructed through the forest preserve, or lands owned by the State. (People v. Long Island R. R. Co., 194 N. Y. 130.) The effect of the statute may he indirectly to benefit any owner of forest lands through which a railroad is constructed, for the reason that compliance there*770with may lessen the danger of destructive fires. But its purpose is not to afford him any redress, nor does the enforcement of it necessarily accomplish this result. It may he, if the penalty is not too severe, that a railroad company will prefer to pay the penalty for a violation of its provisions rather than incur the expense of a compliance therewith. In that event the individual would not even receive a benefit by way of prevention of injury, still less statutory redress for injury if a fire did occur. Again, the penalty is precisely the same whether or not actual injury to the individual has followed a disobedience of the mandates of the statute; and even if the statute might he competent evidence of negligence in an action to recover for injuries suffered by a violation thereof, so far as the penalties provided therein are concerned, it would still be penal in character. (Bay City & E. Sag. R. R. Co. v. Austin, supra.) The rule that a penal statute must be strictly construed, and when its provisions are within the discretion of the lawgiver'it will not be presumed that he intended that it should extend further than the actual expressions contained therein, applies equally to those portions thereof which define the wrong and to those portions thereof which prescribe the extent of the punishment therefor.
The duty imposed by this statute upon defendant is to cut and remove, twice in each calendar year, all grass, brush and other inflammable materials from its right of way. The Legislature having failed to specify at what period in thé year the cutting should be done, it may be that to comply with the obligations thereof it would be sufficient if defendant cut twice during any portion of the year. If that is so, a second cutting made upon the last day of the year would be sufficient to absolve defendant from any penalty for the violation of its provisions. As the language specifying the amount of the penalty is to the effect that any railroad company failing or neglecting to comply with the provisions thereof “ shall be liable to a penalty of one hundred dollars for each day that it continues a violation thereof,” it follows that the amount of the penalty is measured by the days that elapse during which the default continues. As there can be no completed default until the last day of the calendar year, it follows that there *771can be no continued default before that time, and at the most there can be but a single day during which such default can be said to continue.
This construction of the statute is in harmony with the principle contained in the later decisions of the Court of Appeals with reference to cumulative penalties. (Griffin v. Interurban Street R. Co., 179 N. Y. 438; Cox v. Paul, 175 id. 328; United States Condensed Milk Co. v. Smith, 116 App. Div. 15; affd., 191 N. Y. 536; People v. Spencer, 201 id. 105.) It may be urged that these cases are not strictly applicable for the reason that this statute does not attempt to provide for cumulative penalties, but for a single penalty, the amount of which is determined by the number of days contained within each year beyond a specified date. The principle, however, is analogous, and the difficulty with this statute is that it contains no specified date. The Legislature have failed to designate any particular time for the performance of the duty the omission to perform which marks the beginning of the period of default, and there is no clear and definite provision fixing the amount of such penalty, or enabling any other person so to do, or enabling a railroad company to determine when it becomes liable for a violation thereof. The general provisions of the act would seem to indicate an intent to fix a single specified penalty. By section 186 of the Forest, Fish and Game Law (Gen. Laws, chap. 31; Laws of 1900, chap. 20) it is provided that in case of recovery of any amount in an action for a penalty under said act, the People shall recover full costs. For the disposition of the moneys recovered in said action, it is provided that moneys recovered in an action for a penalty shall be paid to the Commission. (§ 187, as amd. by Laws of 1904, chap. 592, and Laws of 1905, chap. 285.) In the section referring to the beginning of such actions for a violation of the fish and game provisions thereof by private persons, it is provided that such person, “ except the Owner or lessee of the premises upon which a penalty is incurred ” (which exception was omitted in 1907), may, on certain conditions, recover “ any penalty imposed by this act.” (§ 188, as amd. by Laws of 1905, chap. 285, and Laws of 1907, chap. 96.) The languagé of the very section under consideration with reference to the *772liability of an officer or employee of a railroad company is to the effect that any such person violating any provision of said section (§ 228, as amd. by Laws of 1904, chap. 590) shall be liable to a penalty of $100 for every such violation. This must be construed as limiting such liability to a single penalty. (Griffin v. Interurban Street R. Co., supra 180 N. Y. 538; Cox v. Paul, supra.) In the Griffin Case (180 N. Y. 538) it was held that the word “every” is not necessarily the synonym of “ each.” The trial court treated the statute as imposing a yearly obligation, and instructed the jury that it could find no verdict against defendant for a penalty for an offense committed in 1905 beyond the thirty-first day of December in that year, and prescribed a similar rule for the year 1906. This must be accepted, therefore, as the law of this case, so far as the amount of the recovery is concerned.
I recommend that the judgment' and order denying the motion for a new trial be reversed and a new trial granted, costs to abide the event, unless plaintiff stipulate to reduce the amount of the recovery to the sum of $200, in which event said judgment and order should be affirmed, without costs.
Jenks, P. J., concurred; Hirohberg, J., voted to affirm.
Judgment and order reversed and new trial granted, costs to abide the event, unless plaintiff within twenty days stipulate to reduce the recovery to the sum of $200, in which case the judgment, as modified, and the order are affirmed, without costs.