majority"> O’Gorman, J.

The statute under which this action is instituted extends over the entire State and is in no sense a local law. It was, therefore, unnecessary to recite or refer to the act in the complaint. The pleader was required only to allege facts bringing the case within the purview of the act, and this has been done. Section 1897 of the Code is inapplicable. The ' complaint accompanied the summons, and in such a case no reference to the statute need be indorsed upon the summons. The statute in question contains no exception within the. section of the act, and the complaint, therefore, does not offend against the rule requiring the pleading to show that the case is not within an exception to the statute. The expression, “-and is liable to a penalty,” etc., in section 39 of the act, clearly means that in addition to the criminal liability .the' offender subjects himself *31to a civil action for the recovery of the penalty prescribed. There is no such ambiguity in the language as to support the defendants’ contention. The possession of the birds at, the forbidden season within the State is prima facie evidence that the possessor has violated the law, and the burden is then cast upon him of proving facts to show that the possession is legal (People v. Buffalo Fish Co., 164 N. Y. 99), and this is as true as a rule of pleading as it is concededly true as a rule of evidence. As to the birds mentioned in counts XIV to XIX of the complaint, the claim of the defendants must be upheld. Sections 30 and 33 cannot be reconciled. Under section 30- plover and snipe have a closed season from May first to August thirty-first, and section 33 is applicable tó birds for which there is no open season. In order to create an offense under section 33 it must appear "not only that the birds are wild birds, but also that they are birds for which there is no open season. Therefore, if they are birds having an open season, or if there be no express provision that there shall be no open season, the taking or possession of them constitutes no offense. Courts will go far to preserve the paramount intention of the Legislature where it is possible to do so, but here the incongruities are so serious and irreconcilable that the construction urged by the plaintiff’s counsel can be yielded to only by the court usurping legislative functions. No cause of action is set forth in these counts, and as to them the demurrer is sustained. In all other respects the demurrer is overruled.

Ordered accordingly.

Note.—An appeal was taken from the interlocutory judgment entered on this decision to the Appellate Division of the First Department and resulted in an affirmance, no opinion being delivered. 72 App. Div. 619. Thereafter the following questions were certified to the Court of Appeals:

1. Do counts I to Xni, both inclusive, of the amended complaint- state facts sufficient to constitute a cause of action?

2. Is the plaintiff entitled to maintain a civil action for the recovery of penalties under section 39 of the Forest, Fish and Game Law, constituting chapter 31 of the General Laws of the State of New York, for a violation of any of the provisions of article II of said act?

*32■ 3. Is the amended complaint defective because it is not therein alleged that the various birds for the possession of which the defendants are sought to be charged with penalties, were taken or killed within the boundaries of the State of New York?

4. Are facts sufficient to constitute a cause of action stated in counts numbered from XIV to XIX, both inclusive, of the amended complaint, or in either of said counts?

5. Gan the defendants be made liable in this action under section 33 of the Forest, Fish and Game Law, as amended by chapter 91 of the Laws of 1901, and section 39, of said Act, by reason of the possession by them as alleged in counts XIV to XIX, both inclusive, of the amended complaint, of the birds described.in said several counts?

On February 10, 1903, the Court of Appeals rendered the following decision (173 N. Y. 622) : “ Judgment affirmed without costs to either party, on opinion below;, the first and second questions certified answered in the affirmative, and the third, fourth and fifth in the negative.

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