Tappen v. State — 65 N.Y. St. Rep. 767

Majority

p. 767

Shepard Tappen, App’lt, v. The State, Resp’t.

(Court of Appeals,

Filed April 30, 1895.)

Headnote

Public health—Diseased animal.

Under the provisions of sections 63, 63, chapter 661 of 1893, the owner of an animal, directed by the state board of health to be killed, is not entitled to the value of the animal considered as sound and unaffected by disease, but simply its actual value in its diseased condition.

Appeal from award by the board of claims, which directed an award of $1,400 in favor of the claimant.

Myer Nussbaum, for app’lt; T. E. Hancock, for resp’t.

A claim was filed by the appellant to recover the sum of $3,645, damages for the killing of forty Jersey cattle, owned by him, by the board of health of the state pursuant to the provisions of chapter 661 of the Laws of 1893. Before the cattle were killed the claimant caused them to be appraised upon the basis that they were sound and unaffected by disease. Upon the trial the attorney-general offered in evidence, without objection, the official autopsies on file in the officq of the board of health, of each animal slaughtered, from which it appears that each was suffering from the disease of tuberculosis. The board so found as a fact- and awarded the claimant $35 per head.

The only question which we are called upon to consider per.tains to the measure of damages adopted by the board. Was the claimant entitled to the value of his cattle upon the basis that-they were sound and unaffected by disease, or was he properly limited to the actual value in their diseased condition? It appears to us chat the question is answered by the statute. It provides-that “The actual value at the time of the destruction of any animal killed in pursuance of this article, not exceeding in the case of a horse affected with glanders, the sum of fifty dollars, shall be paid to the owner thereof by the state ; and the Board of Claims shall have exclusive jurisdiction to hear, audit and determine any such claim.” (Laws of 1893, chapter 661, § 63.)

Actual value means the true value. True value depends upon the condition. If an animal is diseased it is not as valuable as it would be if sound, and its true value can only be determined upon full knowledge of all the facts connected with it.

It appears to us that the Board of Claims adopted the rule cf damages provided for by the statute, and that the award should be affirmed, with costs.

All concur.

Award affirmed.