198 A.D. 158 | N.Y. App. Div. | 1921
Lead Opinion
The relator was the owner .of Karakul fur-bearing sheep. In November, 1917, these sheep were worried, damaged and some of them killed, by dogs, and again in May, 1918, and September, 1918. Within the time limited claims were filed in accordance with the statute, and in due course a hearing was had before the Commissioner of the Division of Agriculture, and an award made for the damages. Thereafter the relator filed a petition with the Council of Farms and Markets for a review of this decision of the Commissioner of Agriculture. After hearing, and in October, 1919, the council rendered its decision, substantially approving and making the same decision as the Commissioner of Agriculture; and thereafter the relator applied for the writ of certiorari herein to review the said decision of the Council of Farms and Markets. It is from the decision of the court in this certiorari proceeding that this appeal is taken. The claims are as follows:
Allowed by
Claimed. council.
November 8, 1917....... $3,097 $907
May 18, 1918........... 4,718 394
September 18, 1918...... 1,120 320
Total amount claimed____ $8,935 Total allowed.. $1,621
The claim of $7,150 for supplemental damages arising from the harrying of the sheep in November, 1917, was disallowed
Chapter 800 of the Laws of 1917, an act amending the Agricultural Law by adding article 5-B thereto, provides for the licensing of dogs and compensating the owners of domestic animals and fowls for injuries done by dogs. Under section 139f of the Agricultural Law, as thus added, the owner of domestic animals' which have been injured by dogs is required to present within sixty days to the Commissioner of Agriculture a verified claim, setting forth the damage so done. Provision is then made for investigation of the vahdity of the claim and for determination of the amount of damages by the Commissioner of Agriculture. The damages are to be paid by the State Treasurer on the warrant of the Comptroller, provided the certificate or decision shall be duly presented for payment within the time limited and as prescribed by the statute. This proceeding was regularly taken with reference to the damages done in 1917. There is no provision in this act of 1917, or in any statute, for a review of the determination of the Commissioner. This law was amended by chapter 439 of the Laws of 1918, and under section 139f of the Agricultural Law, as thus amended, the owner of domestic animals injured or killed by dogs must give notice of his claim to an assessor of the city or town within ten days after discovery of the damage done; and it is provided that the assessors shall “ inquire into the matter ” and if they determine the claim valid they shall certify their determination and the amount of damages, and such certificate shall be filed in the office of the Department of Farms and Markets, which department “ may approve, reject- or modify the determination of the assessors.” After passing on the claim the department shall issue duplicate certificates, showing the amount of damages ascertained, one of which shall be filed with the Comptroller and the other delivered to the owner. Within twenty days from the date of mailing such certificate, if the claimant feels aggrieved, he may file a petition with the Department of Farms and Markets for a review of the determina
There is no provision for a review by the courts of the determination under the above act of 1917, or the act as amended in 19-18. The entire proceeding for realizing on a claim for damages to domestic animals done by dogs is a statutory creation. The Agricultural Law is chapter 1 of the Consolidated Laws (Laws of 1909, chap. 9, as amd.). The Farms and Markets Law is chapter 69 of the Consolidated Laws (Laws of 1917, chap. 802, as amd.). Each is a complete and distinct law from the other. There is under the Agricultural Law no provision for reviewing any decision or determination therein provided for in the courts. The Farms and Markets Law, however, after providing for certain hearings and proceedings, does provide for a review by the courts of a decision
While the State by name is not a party in this proceeding, yet, when an award is made by a commissioner or council under the Agricultural Law, such award is to be paid by the State Treasurer out of any funds available *therefor; that is, out of funds which belong to the State and which it alone has the power to disburse. Such a claim can only be enforced with the consent of the State and in the manner provided for by the State. (See Buckles v. State of New York, 221 N. Y. 418, 423.) It seems plain that section 56 of the Farms and Markets Law is not authority for this proceeding. Our attention has not been called to any other statute, and we have not been able to find any other statute, which confers the authority upon the court to review a determination made under the Agricultural Law. The only other similar legislation to which our attention has been called was article 7 of the County Law, as amended, which was repealed by chapter 800 of the Laws of 1917 (adding to Agricultural Law, art. 5-B). Without such statutory authority the proceeding by writ of
The orders appealed from are, therefore, reversed and the proceeding should be dismissed, with costs.
All concur, except Kiley, J., dissenting, with a memorandum.
Dissenting Opinion
It is conceded by the State that the sheep were attacked and some damage done in the manner alleged by respondent. The appellant raises but two questions: First. That the statutory procedure followed was improper, in that under the Agricultural Law there are no proceedings for review. Second. That the damages were excessive. As to the first objection: Chapter 9 of the Laws of 1909, which constitutes •chapter 1 of the Consolidated Laws, is entitled “An act in relation to agriculture,” etc. Section 1 provides that its short title shall be the “Agricultural Law.” That law with its several and subsequent amendments was the only law we had on that subject until the “ Farms and Markets Law ” (Consol. Laws, chap. 69; Laws of 1917, chap. 802). A reading of this
Orders appealed from reversed and proceeding dismissed, with costs.