
    The People of the State of New York, Respondent, v. Edward Van Fradenburgh, Appellant.
    
      Board of health — its right to prohibit table refuse from a sanitarium being brought into a village.
    
    A village board of health has no power to make an order forbidding fresh table and kitchen refuse from asimilarium for consumptives from being brought into the corporate limits of the village as food for hogs and fowls, in the absence of proof that such refuse from the sanitarium for consumptives is any more dangerous to the community than similar refuse from a 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 - bearing 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 crime 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 bóth.
    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 liis 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 appear 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 ■ to be the fact in sustaining this conviction. Has the board of health, then, the right to 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 to the public health lies in permitting it to remain until it decays, and throws pff 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.  