Fox v. Dixon

12 N.Y.S. 267 | N.Y. Sup. Ct. | 1890

Learned, P. J.

Chapter 513 of the Laws of 1880 forbade any physician to practice who had not obtained and filed the certificate therein mentioned; and it declares that it shall be a misdemeanor to practice without having obtained and filed this certificate. It is not disputed in this case that Little, the plaintiff’s assignee, and the physician, to recover payment for whose services this action is brought, and had not obtained" or filed such certificate at the time when the services were rendered. It is a settled principle that one cannot recover compensation for doing an act, to do which is forbidden by law, and is a misdemeanor. The contrary rule would make an absurdity. It would permit one to hire another to commit a misdemeanor, and would compel the payment of the contract price for doing what the law forbids. Whether this statute is wise or not, we cannot examine. It is enacted in the interest of the health of the public, to prevent incompetent persons from practicing as physicians. We must give effect to it. And we cannot permit a recovery of compensation for doing an act which this statute declares to be a misdemeanor. Oscanyan v. Arms Co., 103 U. S. 261. It would seem that the attention of the learned justice who tried the case could not have been called to the statute; for he states that the inhibition had been removed by the legislature, and that now anybody can practice. In saying this, he seems to have had reference to the law as it existed before the statute of 1880, above cited. At any rate, it is not disputed that when Little performed these services the statute forbade him to practice. As the defendant proved affirmatively that Little had no license, we need not inquire whether proof that a physician has a license is a necessary part of the plaintiff’s case in an action for services. The judgment must be reversed, and a new trial granted, costs to abide the event.

All concur.