dissent">Williams, J. (dissenting):

The judgment and order should be affirmed, with costs.

The action was brought to recover' a penalty of $300 for burning logs, etc., in a fallow, at a time of year prohibited by section 229 of the Forest, Fish and Game Law (Laws of 1900, chap. 20). That section provides: “ Any person violating any provision of this section is guilty of a misdemeanor, and in addition thereto is liable to a penalty of three hundred dollars.” The defendant appellant was arrested for a misdemeanor under this statute, pleaded not *428guilty, and upon liis trial therefor was acquitted. This action was based upon the same prohibited act for which he was tried and acquitted. The trial court held the acquittal on trial for the mis-: demeanor was a bar to a recovery of the penalty, and the correctness of this ruling is the only question involved in this appeal.

We do not think it necessary to enter upon any discussion of the question involved, inasmuch as there are at least two cases reported which involve practically the same question and which are directly in conflict with each other. (People v. Rohrs, 49 Hun, 150 ; Coffey v. United States, 116 U. S. 436; approved in Stone v. United States, 167 id. 178.)

The Sohrs case was decided by the first department, General Term, in 1888. The Ooffey case was decided in 1886, and was approved in the Stone case in 1897. . The rule of law laid down in the Ooffey cáse was that adopted by the trial court in the present case, and seems to have been well considered and to be the settled law of the United States Supreme Court. The opinion in the Sohrs case was a per curiam one, and the attention of the General Term was not apparently called to the Ooffey case or the reasoning of the court upon which that case was determined. The General Term held 'the former acquittal was not a bar to the recovery of the penalty.

We think, under this condition of the decisions, that we should follow the.rule laid down in the United States Supreme Court, and that the judgment - and order should, therefore, be affirmed, with costs.

Stover, J., concurred. .

Judgment and order reversed and new'trial ordered, with costs to the appellant to abide event.

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