188 A.D. 419 | N.Y. App. Div. | 1919
Lead Opinion
The deceased was the owner of a farm and had twenty cows thereon. A tenant was in possession of the farm and cows. Through the fault of the owner or tenant or both the cows were insufficiently supplied with food. A representative of the plaintiff went to the barn on the premises where the cows were being kept and supplied them with food. For the reasonable value of such food a judgment herein has been recovered.
Plaintiff bases its action on the following provision of the Penal Law:
“ § 187. Failure to provide proper food and drink to impounded animal. A person who, having impounded or confined any animal, refuses or neglects to supply to such animal during its confinement a sufficient supply of good and wholesome air, food, shelter and water, is guilty of a misdemeanor. In case any animal shall be at any time impounded as aforesaid, and shall’ continue to be without necessary food and water for more than twelve successive hours, it shall be lawful for any person, from time to time, and as often as it shall be necessary, to enter into and upon any pound in which any such animal shall be so confined, and to supply it with necessary food and water, so long as it shall remain so confined; such person shall not be hable to any action
In my opinion the foregoing statute has been misapplied. It does not relate to an animal on the premises of its owner but to one which has strayed from such premises and has been distrained or impounded because of such straying or trespassing. It does not relate to the owner of an animal but to one who has distrained, impounded or caused to be confined such animal so straying or trespassing. The clear purpose of the statute is to secure the necessities of life to a distrained animal which has strayed from the possession of its owner until reclaimed by him. To effectually accomplish this humane purpose the statute in question places the burden of the proper maintenance of such distrained animal during the period of its confinement on the person responsible for such confinement under the penalty of a misdemeanor if he fails in such duty, and to make assurance doubly sure the statute further gives to any person the right to furnish food to such an animal if the person causing its confinement fails in his duty in that respect and makes the expense thereof a charge both on the property and against the owner. Section 185 of the Penal Law makes the owner guilty of a misdemeanor if he neglects to furnish his animals with necessary sustenance. Section 187 was, therefore, unnecessary so far as the owner is concerned. Its purpose is as above indicated. For the accomplishment of this purpose it is among other things provided in the second sentence of the section that if the animal is left by the person impounding it without necessary food and water for more than twelve successive hours, any person may “ enter into and upon any pound ” and supply such food and water, for which the owner then is made hable. It is to be observed that the entry must be into a pound — not on the premises or in a building or place — clearly indicating the purpose of the statute. It would be a distortion of the meaning of this word and a wide deviation from its ordinary significance to make it apply to a field of an owner on which his cattle might be lawfully grazing or to a bam or other building on his farm wherein the cattle might be kept. That
The “ pound ” is a very ancient institution. Perhaps it is as old as any Anglo-Saxon institution which has come down to us. Modem civilization has largely outgrown its necessity and its usefulness. Nevertheless it has a recognition and standing in our statutes. (Town Law ' [Consol. Laws, chap. 62; Laws of 1909, chap. 63], arts. 20, 21.) The word has a well-understood legal meaning. It is defined in Bouvier’s Law Dictionary [Rawle’s Rev.] as follows: “ A place, enclosed by public authority, for the temporary detention of stray animals.” “ Impound ” is defined by the same authority as follows: “ To place in a pound goods or cattle distrained or astray.” While it is true that some lexicographers give a figurative or secondary meaning to the term, I think the primary and underlying signification and the dominant idea is that of an inclosure for the confinement of animals taken in trespassing or when running at large in violation of law until they are reclaimed by their owner. A clear and comprehensive statement of the legal significance of a pound is contained in the New International Encyclopedia, under the word “Pound” as follows: “An inclosure for the temporary confinement of stray animals. Where domestic animals stray upon the public highways, or upon the land of individuals, any person injured thereby may take possession of and impound them, i. e., detain them in a pound until the owner pays him for any damage they may have caused. A pound may be one established by law, known as a public or common pound; or where there is no public pound, a person on whose land cattle or other domestic beasts stray may confine them in an inclosure on his own land, with the intention of thereby impounding them. In the latter case, the person so confining the animals is responsible for
It is not necessary to hold that section 187 of the Penal Law applies only to a public pound. In fact there is not in every municipality a public pound. But the statute (Town Law, arts. 20, 21) makes provision for the disposition and treatment of trespassing or strayed animals whether there is or is not a pound. Title 10 of chapter 19 of the Code of Civil Procedure also contains minute provisions for the care and disposition of such an animal without reference to a public pound. In all such cases if one confines such cattle either in a public pound or as stated in the encyclopedia (supra) “ in an inclosure on his own land, with the intention of thereby impounding them,” the law intends that the animals shall be humanely treated while out of their owner’s possession and makes provision whereby the expense of such treatment whether incurred by the person .responsible for their confinement or by another under proper circumstances, shall be chargeable against the owner and the property itself. It is to such a situation that section 187 of the Penal Law applies.
It is not contended that the judgment can be sustained on any other ground.
The judgment of the City Court and County Court should be reversed, with costs.
All concurred, except John M. Kellogg, P. J., dissenting, with a memorandum.
Dissenting Opinion
A mere volunteer cannot force his services or property upon another and exact payment therefor. There must be a request, express or implied. The party sought to be charged in some way must have invited the service. Here, concededly, the original defendant, the owner of cattle, left them without food; some died of starvation; others became so poor and weak that they fell down and had to be helped up, and evidently the life of the herd was at stake. Said defendant was violating the law and every instinct of humanity. He voluntarily created a situation which compelled plaintiff to act. Such conduct on his part, in my judgment, may be construed as a request
Judgment of County Court and City Court reversed, with costs.
