Fox v. Dixon — 34 N.Y. St. Rep. 710

Majority

p. 710

Patrick Fox, Resp’t, v. Robert Dixon, Overseer of the Poor of the Town of Rosendale, App’lt.

(Supreme Court, General Term, Third Department,

Filed December 12, 1890.)

Headnote

Physicians—Who have not filed certificate cannot recover for services.

A recovery will not be permitted for professional services performed or rendered by a physician who has not filed the certificate required by chap. 513, Laws 1880.

Appeal from judgment in favor of plaintiff, entered 'on verdict, and from order denying motion for a new trial on the minutes.

Action to recover the amount of certain orders issued by defendant for the relief of poor of the town. A part of the orders were for goods furnished by plaintiff and the balance were for services rendered by one Little as physician and which were discounted by plaintiff. Little had not filed the certificate required by chap. 513, Laws 1880.

John E. Hardenlerg, for app’lt; William Lounslery, for resp’t.

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, 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 Company, 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,

p. 711

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.

Landon and Mayham, JJ., concur.