This is an appeal from a judgment entered upon the decision sustaining a demurrer to the complaint of the plaintiff. The action is brought to recover from the defendant a penalty of $100, for having caught menhaden by means of a net in the waters within the jurisdiction of the county of Bichmond in the state of Hew York, on the 25th day of July, 1894, contrary to the ordinance passed by the supervisors of Bichmond county, and contrary to and in violation of chapter 488 of the Laws of 1892. The complaint sets forth an ordinance adopted by the board of supervisors of the county of Bichmond, at their annual session in 1892, by which it is provided thatmenhaden shall not befished for, caught, or captured in any of the waters within the jurisdiction of the county of Bichmond by means of nets of any kind, and imposed the penalty of $100 for each offense. It is also alleged that the defendant, in violation of the ordinance, contrary to and in violation of chapter 488 of the Laws of 1892, fished for, caught, and captured by means of nets, menhaden in the waters within the jurisdiction of the county of Bichmond and state of Hew York, and that by reason of such violation of the statute the defendant is indebted to the plaintiff in the sum of $100, being the amount of the penalty prescribed by said act or ordinance of the board of supervisors, and the statute cited.
By the statute of 1892, familiarly known as the county law, power is conferred upon boards of supervisors to provide for the protection and preservation, subject to the laws of the state, of wild animals, birds, game, and fish and shellfish, within the county, and prescribe and enforce the collection of penalties for the violation thereof. Chapter 488, § 138, of the Laws of 1892, provides that no device, except angling, shall be placed, drawn, or used for the capture of any fish excepting menhaden in the waters of Baritán Bay, nor any waters adjacent thereto in Bichmond county. That section was amended by chapter 627 of the Laws of 1894, by adding at the end thereof the following words, and re-enacting the section as originally adopted, by the following addition thereto:
“Except that shad may be taken by shad nets between the 15th day of March and the 15th day of June, but said nets shall not be allowed to remain in said waters from Saturday at sunset to the following Monday at sunrise.”
Upon the decision of the demurrer the judge at special term made a thorough examination of the case, and wrote an opinion in which we concur, and with which we are entirely satisfied, and we think the judgment should be affirmed, with costs, on the opinion of the judge who decided the demurrer. All concur.