County of Steuben v. Wood , 48 N.Y.S. 471 ( 1897 )

Ward, J.:

I concur in the result reached by the majority of the court in this case, and will state the grounds upon which I think the reversal should be based.

The 3d paragraph of the complaint is the only one upon which the plaintiff can stand, if he can stand at all, in the face of the motion at the commencement of the trial by. the defendant to dismiss the complaint upon the ground that it does not state facts sufficient to constitute a cause of action. ¡Recalling that paragraph, it is as follows :

“ Third. 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.”

This is not a statement of a cause of action. Section 171 provides that no person shall ."practice veterinary medicine, unless previously registered and legally authorized, unless licensed by the Regents and registered as required by the statutes, nor should anybody practice who had been convicted of felony, etc.

If the complaint, in addition to what it states, had charged that he practiced veterinary medicine without having been previously registered, in the language of the statute, I think there would have been a cause of action, for it - is sufficient, in my judgment, to charge the offense in the language of the statute in addition to charging the incurring of the penalties under section 184. (The People v. Dorthy, 20 App. Div. 312, 313, and cases cited.)

But simply to refer to a statute which has general provisions and conditions, without defining the particular charge in the complaint itself in the language of the statute, leaves the complaint utterly worthless.

I do not think that the pleader was compelled to state the particulár things that the defendant did by way of practicing veterinary medicine, nor do I think it is necessary to place the decision at all upon the ground that it omits to negative the exceptions in the enacting clause. That question should have been distinctly raised upon the motion to dismiss the complaint if relied upon.

It seems to me it would be better to put the reversal upon the single ground that I have stated.

Defendant’s exceptions sustained and motion for a new trial granted, with costs to the defendant to abide the event.