
    The County of Steuben, Plaintiff, v. John Wood, Defendant.
    
      Action to recover penalties for the illegal practice of veterinary medicine — a complaint not stating the facts constituting a violation, nor negativing the exceptions contained in the statute—how the objection may be raised—when it is not cured.
    
    A complaint in an action brought to recover penalties incurred by reason of an alleged violation of the General Health Law (Laws of 1893, chap. 661, § 171, as amended by the Laws of 1895, chap. 860), forbidding the practice of veterinary medicine by persons “ unless previously registered and legally authorized, unless licensed by the regents and registered as required by this article,” which merely alleges that the defendant practiced veterinary medicine and surgery at a certain time and place “in violation of sections 171 and 184” of that act, and does not state the facts upon which the alleged violation is predicated, nor negative the exceptions contained in the act, does not state a cause of action.'
    Such objection is one which, under section 499 of the Code of Civil Procedure, need not be taken in the first instance by motion or demurrer, but may properly be taken at the opening of the trial; and the defect is not cured under the provisions of section 721 of the Code, by a verdict in favor of the plaintiff where the record shows that, upon each attempt to prove a violation of the statute, the defendant objected to the evidence as being incompetent under the complaint.
    Motion by the defendant, John Wood, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the verdict of a jury rendered by direction of the court after a trial at the Steuben Trial Term.
    
      Lewis Cass, for the plaintiff.
    
      Francis E. Wood, for the defendant.
   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 ninety-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.)

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, 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.

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.  