County of Steuben v. Wood

Adams, J.: This action was brought by the New York State Veterinary Medical Society, in the name of the county of Steuben, to recover two penalties of fifty dollars each which it is claimed the defendant had incurred by reason of two violations of section 171 of chapter 661 of the Laws of 1893, as amended by chapter 860 of the Laws of 1895, being part of article 10 of the General Health Law. This section reads as follows, viz.: “No person shall practice veterinary medicine after July one, eighteen hundred and ninety443 five, unless previously registered and legally authorized, unless licensed by the Regents and registered as required by this article; nor shall any person practice veterinary medicine who has ever been convicted of a felony by any court, or whose authority to practice is suspended or revoked by the Regents on recommendation of a State board.” The complaint alleges (1) the incorporation of the State Medical Society; (2) its right within the provisions of the law to bring the action in the name of the plaintiff; and (3) that “ during the month of December, 1895, and January, 1896, the defendant practiced veterinary medicine and surgery at Campbell, within the county of Steuben, State of New York, in violation of sections 171 and 184, chapter 860 of the Laws of 1895. * * * ” It also contains a similar allegation as to a violation at or near Horseheads, in the county of Chemung, but this cause of action was abandoned on the trial and no evidence was offered in support thereof. The only other averment in the complaint relates to the defendant’s liability, and is to the effect that, “by reason of the facts aforesaid, the defendant became indebted to the plaintiff in the sum of one hundred dollars * * * under section 184, Chapter 860 of the Laws of 1895; ” and this was followed by the usual demand of judgment for the amount specified, with costs. To this complaint the defendant interposed a general denial, and the issue thus joined was subsequently brought to trial. Immediately upon the commencement of the trial the defendant’s counsel moved to dismiss the complaint upon the ground that the same did not state facts sufficient to constitute a cause of action, and for the further reason that it did not appear that the party prosecuting the action had a right to maintain the same. This motion was denied by the court, to which ruling the defendant’s counsel duly excepted, and this exception, in our opinion, presents reversible error. The main office of a complaint being to apprise the defendant of the facts upon which the plaintiff relies to establish a cause of action, the Code requires that such facts shall be stated plainly and concisely (Code Civ. Proc. § 481); and inasmuch as this action is highly penal in its nature, there was especial reason why, in this particular instance, the rules of pleading should not have been relaxed. (People v. Belknap, 58 Hun, 241.) [444] By referring to the complaint it' will be seen that the facts upon which the plaintiff relies to establish its cause of action are not only-not stated in the manner required by the section just cited, but that it contains no statement of facts whatever, the pleader being apparently content to rely upon the bare allegation that the defendant, at the time and place mentioned, practiced veterinary medicine and surgery in violation of the statute, which manifestly amounts to nothing more than a statement of a mere legal conclusion. (Village of Cortland v. Howard, 1 App. Div. 131; People v. Olmsted, 74 Hun, 323; People v. Pillion, 78 id. 74.) Moreover, the pleading is defective in another essential particular, for it omits to negative the exceptions contained in the enacting clause of the statute upon which the plaintiff rests its right to recover. (Rowell v. Janvrin, 151 N. Y. 60.) It seems quite clear, therefore, that, within the authorities cited, the objection raised' by the defendant is well founded. It is insisted, however, that the defendant has deprived himself of the right to question the sufficiency of the complaint by proceeding with the trial in the manner he did, but we do not find anything in the record which will warrant this contention. The objection being one which the defendant Avas not required to raise by motion or demurrer (Code Civ. Proc. § 499), it was proper to present it at the opening of the trial, and the defect complained of was then stated Avith sufficient particularity to have enabled the plaintiff to remedy the same by amendment, if counsel had been so minded. It is also urged that the defect was cured by the verdict, and section 721 of the Code of Civil Procedure is invoked in aid of this proposition. We do not deem this contention well founded, for if we assume that the evidence furnished by the plaintiff’s witnesses was -sufficient to sustain the verdict of the jury, Ave must not overlook the fact that whenever an attempt was made to prove a violation of the statute it was met with the objection that the evidence was “ incompetent * * * under the complaint,” and in each .instance, when such objection was overruled, an exception was taken, which was all that could have been done by the defendant to preserve his legal rights. He did not, it is true, attempt to meet the plaintiff’s proof, but this he was not called upon to do, if he was correct in his assumption that the complaint did not sufficiently set forth a cause of action, [445] and in these circumstances the proofs did not cure the defect complained of. ( Village of Cortland v. Howard, supra.) Our conclusion, therefore, is that the defendant’s exceptions should be sustained and his motion for a new trial granted. All concurred, except Ward, J., who concurred in the result.