
    The Mayor, etc., of The City of New York, Appellant, v.. Frank A. Bigelow, Respondent.
    (New York Common Pleas — General Term,
    June, 1895.)
    Instead of registering- his license as a physician with the couilty clerk, as required by law, the defendant filed it with the board of health. After suit commenced to recover the penalty imposed for failure to make proper registration, but before trial, the defendant made due registration. Held, that such subsequent registration is a defense to an action for the penalty.
    Appeal from judgment of a District Court.
    As a condition of the right to practice medicine in the state of New York the statute requires that a license be registered with the county clerk ; and for practicing without such registration a person shall forfeit fifty dollars to the-county. But if one “ whose registration is not legal because of error, misunderstanding or unintentional omission, shall submit satisfactory proof that he had all the requirements prescribed by law at the time of his,imperfect registration, lie-may, on .unanimous recommendation of a state board of medical examiners, receive from the regents under seal a certificate-of the facts, which may be registered by any county clerk, and shall make valid the previous imperfect registration.
    Having, from ignorance of the law, filed his license with the board of health instead of with the county clerk, the defendant pursued the practice of medicine; and thereupon this action was brought to recover the prescribed penalty. ’
    At the trial the defendant produced a certificate by the county clerk that since the suit he had made due registration in conformity with the statute. Upon this state of fact the plaintiff moved for judgment, but the court decided for the defendant, and dismissed the complaint.
    
      Robert O. Ta/ylor, for appellant.
    
      James R. Angel, for respondent.
   Pryor, J.

Despite the elaborate and interesting argument of plaintiff’s counsel, we are of opinion that the action may not be maintained.

“ In expounding penal statutes it is an established rule that the construction must be strict as against the defendant, but liberal in Ins favor? Gould, J., in Myers v. State, 1 Conn. 502; Whitaker v. Masterson, 106 N. Y. 277, 280: And this canon of interpretation was applied by a very great judge to precisely such a statute as that in question, namely, one imposing a penalty for exercising a trade without due qualification. Lord Mansfield in Raynard v. Chase, 1 Burr. 2, 6.

It is contended that as the penalty was incurred by the defendant’s unauthorized practice, his subsequent qualification is ineffectual to its remission.

The registration with the board of health, argues the plaintiff, was not an imperfect registration, but simply no registration. The statute allows an illegal ” registration to be repaired, where the cause of it was some error, misunderstanding or omission.” The case is within the very terms of the statute. LTor is it less consistent with the policy of the statute, which is to admit a competent physician to practice when, in good faith, he has endeavored to comely with its requirements.

If that be so, still the plaintiff insists that the statute is not retroactive, and is inoperative to validate an invalid registration. This is just the»effect it contemplates and accomplishes. By its terms the subsequent registration “ shall make valid the previous imperfect registration.” What is thus made valid ? Obviously the previous imperfect registration. If this be not the true construction then the words are meaningless, because without them the correct registration would take effect at once and authorize future practice.

If so, urges the plaintiff, a man may register whenever he pleases. Why not, if, seeking to obey the law, he has evaded it by error' or inadvertence ? The construction we adopt would be repugnant to the policy of the statute if the unauthorized practice of an incompetent physician were condoned by the subsequent registration. But to obtain such subsequent registration he must “ submit satisfactory proof that he had all the requirements prescribed by law at the time of the mvperfeet registration? Having such requirements, what harm ensues from suffering him to supplement the defective authentication of his competency ? The subsequent registration demonstrates his qualification from the beginning.

Mor was the remedial operation of the subsequent registration in legalizing prior practice arrested by the institution of this action. As the suit is by the public for the benefit of the public, a repeal of the statute pendente lite would cancel the penalty. Bish. Written Laws, § 178. Were the action by an individual for his own benefit, such repeal, any time before final judgment, would bar recovery of the penalty. Butler v. Palmer, 1 Hill, 324; Welch v. Wadsworth, 30 Conn. 149 ; Wharton v. State, 94 Am. Dec. 214, note. A fortiori is the penalty revoked by an act which the statute imposing it provides shall .remove the provocation of the penalty. Without a penal cause there cannot be a penal consequence.

It is conceded that the defendant is a competent physician in large practice ; that his failure to comply with the law in the first instance was not intentional, but inadvertent; that apprised of his mistake, he promptly corrected it; that at the time of the trial his qualification was certified in legal form ; why, then, should he be chastised by a penalty denounced against imposture only? To give the statute such an effect would be equally against the settled rules of construction, the obvious policy of the law and the equities of the individual.

Judgment affirmed, with costs.

Bookbtaveb and Bischoff, JJ., concur.

Judgment affirmed, with costs.  