Chenango County Humane Society v. Polmatier ( 1919 )

John M. Kellogg, P. J. (dissenting):

A mere volunteer cannot force his services or property upon another and exact payment therefor. There must be a request, express or implied. The party sought to be charged in some way must have invited the service. Here, concededly, the original defendant, the owner of cattle, left them without food; some died of starvation; others became so poor and weak that they fell down and had to be helped up, and evidently the life of the herd was at stake. Said defendant was violating the law and every instinct of humanity. He voluntarily created a situation which compelled plaintiff to act. Such conduct on his part, in my judgment, may be construed as a request to any willing person to grant reasonable relief to the starving animals. A man wrongfully refuses to support his dependent wife or children and a neighbor furnishes such support; the law considers the abandonment a request to furnish them maintenance. They carry his credit with them for necessities. A man of means refuses to bury his deceased infant son, a member of his family; a neighbor who performs the service may recover upon the theory that the conduct of the father was a request to give a reasonable burial to the son. In this case the necessity was such that, in my judgment, the plaintiff may recover upon quantum meruit/ Such a position is not inconsistent with the complaint. It might have alleged a sale and delivery of the hay at defendant’s request; instead of that it showed, in substance, that the defendant was allowing his cattle to starve and the plaintiff, as an act of humanity, came to their relief. The allegation as to the pound and the implied reference to section 187 of the Penal Law may be disregarded as surplusage. I favor an affirmance.

Judgment of County Court and City Court reversed, with costs.