
    Supreme Court—Appellate Division—Third Department.
    March, 1903.
    THE PEOPLE v. EDWARD VAN FRADENBURGH.
    (81 App. Div. 259.)
    1. Board or Health—Penal Code, Sec. 397.
    A board of health has no right to forbid the bringing into a village of fresh table and kitchen refuse from a sanitarium for consumptives as food for hogs and fowls, so long as there was no proof that this refuse was any more dangerous than the refuse from any hotel.
    Appeal by the defendant, Edward Yan Fradenburgh, from a judgment, of the County Court of Sullivan, county, bearing date the 8th day of February, 1902, upon the verdict of a jury, and also from an order hearing date the 8th day of February, 1902, and entered in the office of the clerk of the county of Sullivan, denying the defendant’s motion for a new trial made upon the minutes.
    The defendant was indicted for a misdemeanor in- willfully violating a lawful order of the board of health of the village of Liberty, Sullivan county, H. Y. • The crimei is. claimed to have been committed under section 397 of the Penal Code, which provides that a person who willfully violates or refuses or omits to comply with any lawful order or regulation prescribed by any board of health is punishable by imprisonment not exceeding one year or by a fine not exceeding $2,000 or by both.
    
      The defendant had been collecting from the Loomis Sanitarium for Consumptives refuse from the table and kitchen and depositing it upon his premises for consumption by his chickens and hogs. This refuse was allowed to stand for such a time that it created a bad stench, and after having been duly notified, he was directed by the board of health to remove the same from his premises, and was forbidden from drawing into the corporate limits of said village of Liberty any more of such refuse from said sanitarium. He did remove what was then upon his premises, but in disobedience of the order of the board of health he did draw further refuse from the sanitarium upon the said premises in the village of Liberty. For this he was indicted and convicted. Further facts app'ear in the opinion.
    W. J. Groo, for the appellant.
    Frank S. Anderson, for the respondent.
   Smith, J.:

The gist of the crime of which the defendant has been convicted is the disobedience of a lawful order of the board of health. Unless, then, the order disobeyed was one lawfully made by the board of health, the defendant has been guilty of no' crime. There is no proof that this refuse from the sanitarium for consumptives is any more dangerous to- the community when exposed than the refuse from any hotel, and we cannot assume such to1 be the fact in sustaining this; conviction. Has the board of health, then, the right toi forbid a person from bringing into the village refuse from a hotel or any other public-house ? Under the evidence in this case, such refuse, while it is fresh, is wholesome food for hogs and fowls. The menace to1 the public health lies in permitting it to remain until it decays and throws off a stench which is prejudicial to the comfort of the community, if not to its health. As long, therefore, as the mere bringing into the community of fresh refuse from a public place has in it no element of threatened danger to the public health or comfort, I am unable to see by what authority the board of health is permitted to' prohibit the same. For this reason the People have failed to prove the commission of a crime, and the judgment of conviction must-be reversed.

All concurred.

Judgment and order reversed and new trial granted.  