People v. Davis

• Citation: 231 N.Y. 60,131 N.E. 569
• Parties: PEOPLE v. DAVIS.
• Decision Date: 19 April 1921
• Court: New York Court of Appeals

231 N.Y. 60

131 N.E. 569

PEOPLE

v.DAVIS.

Court of Appeals of New York.

April 19, 1921.

Action for penalties by the People against George H. Davis. A judgment for the People, entered on a verdict, was reversed by the Appellate Division, and the complaint dismissed, one judge dissenting (189 App. Div. 301,178 N. Y. Supp. 433), and the People appeal.

Judgment of the Appellate Division reversed, and that of the Trial Term affirmed.

Appeal from Supreme Court, Appellate Division, Third department.

Charles D. Newton, Atty. Gen. (C. T. Dawes and T. Paul McGannon, both of Albany, of counsel), for the People.

H. B. Sewell, of Sidney, for respondent.

McLAUGHLIN, J.

This action was brought to recover penalties for a violation of the Agricultural Law (Cons. Laws, c. 1; Laws of 1909, c. 9). The complaint set out four causes of action, but at the conclusion of the evidence the plaintiff elected to go to the jury on only the first and fourth.

The first cause of action alleges, in substance, that the defendant, at the time stated in the complaint, was a duly licensed veterinarian, practicing as such at Sidney, N. Y.; that on the 1st of May, 1916, as such veterinarian, he went to the farm of one George W. Fenner; that after examining his herd of cows he condemned one cow as tubercular, put a tag in her ear, and ordered Fenner to dispose of her; that the following day defendant returned to the farm for the purpose of ascertaining whether the cow had been disposed of, and again ordered Fenner to do so at once, stating that she was tubercular; that the defendant did not immediately thereafter, nor at any time, report to the commissioner of agriculture of the state of New York in writing that the cow was tubercular, or in any way comply with section 98 of the Agricultural Law; that by reason of such violation on his part the plaintiff became entitled to recover from him the penalty provided in section 52 of such law.

Substantially the same allegations were set out in the fourth cause of action, except that the cow condemned belonged to one Teed.

The answer admitted that the defendant was a veterinary, practicing as such; that he made a physical examination of the cows on the farm of Fenner, as set out in the first cause of action, but denied that he condemned as tubercular, or ordered disposed of, any of said cows. Substantially the same admissions and denials were made as to the fourth cause of action.

At the conclusion of the evidence the defendant did not move that the complaint be dismissed, or that a verdict be directed in his favor. The case was sent to the jury with instructions, to which no exceptions were taken, that if it found that defendant did condemn the cows referred to as tubercular, and order them disposed of for that reason, then plaintiff was entitled to recover; that if, on the other hand, it found defendant did not condemn the cows as tubercular, but condemned them as being afflicted with some other disease, then the verdict would be for defendant for no cause of action. The jury found a verdict in favor of the plaintiff, upon which judgment was entered, an appeal taken to the Appellate Division, which reversed (one of the justices dissenting) the judgment as matter of law, holding there was no evidence to go to the jury, and dismissed the complaint. The appeal to this court followed.

So much of section 98 of the Agricultural Law (Laws 1909, c. 9), to which reference has been made as is material reads:

‘All veterinarians in the state shall immediately report to the Commissioner of Agriculture the existence among animals of any infectious or communicable disease coming to their knowledge. The report shall be made in writing and shall include a description of the diseased animal or animals, the name and address of the owner or person in charge of the animal, if known, and a statement as to the location of...