Finch v. Gridley's executors — 25 Wend. 468

Majority

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Finch vs. Gridley’s executors.

Headnote

A physician may maintain an action for medical attendance rendered by him, although he has neglected to deposite a copy of his license in the clerk’s office of the county of which he is a resident.

Proof of the seal of a medical institution, and of the signatures of the officers thereof to a diploma, produced on the trial of a cause by comparison with the seal and signatures attached to a diploma received by the witness from the same institution, is competent evidence of the genuineness of the instrument, although the witness never saw the officers write their names.

This was a reference under the statute respecting the duties of executors and administrators in the payment of debts, &c. 2 R. S. 27, et seq. The plaintiff and the defendants entered into a submission, approved by the surrogate of the city and county of New-York, to refer the matters in controversy to three referees ; and a rule for reference was accordingly entered. The plaintiff claimed $230 for his attendance as a physician upon the testator. On the hearing before the referees, the plaintiff, a resident of Columbia county, produced a paper, purporting to be a certificate granted by the president of the Medical Society of that county, certifying that he, the

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plaintiff, had been regularly admitted a member of such society. It bore date on the 6th June, 1837, and purported to be signed by B. Van Beuren, president. It was proved that R. Van Beuren was addressed as presi. dent of the County Medical Society; and that his name ^appeared in publications as such officer ; and that the signature [ *470 ] to the certificate was in his hand-writing. The plaintiff also produced a diploma, granted by The Medical Society of the County of Seri timer, at B'airfield, under the seal of the institution, signed by Westel Willoughby, M. D. president, and by M. Johnson, M. D. secretary, bearing date 14th January, 1835, conferring upon the plaintiff the privilege of practising physic and surgery in this state. A physician, resident in the city of New-York, proved the seal of the institution at Fairfield, and testified that he had himself obtained a diploma from that institution, under the same seal, and subscribed by the same officers; and that though he had never seen the officers, whose names were subscribed to the diploma produced, write, he had no doubt of the genuineness of the signatures, from a comparison of the diploma produced with other diplomas granted by the same institution, and particularly with that received by himself. The defendants proved that the plaintiff had not deposited a copy of his license in the clerk’s office of the county of Columbia. After hearing the evidence of the parties in relation to the medical attendance of the plaintiff, the referees made a report in favor of the plaintiff for $5116; which the defendants moved to set aside.

W. McMurray, for the defendants,

insisted that the evidence was insufficient to show that the claimant, or plaintiff, was duly licensed to practise physic ; and that at all events, having neglected to deposite a copy of his license in the clerk’s office of the county in which he resided, be was not entitled to recover. The act concerning the practice of physic, in section nineteen, declares that until such license is so deposited, the physician shall be liable to all the penalties provided by law, in the same manner as if he had no license. It cannot, be that a party can maintain an action for services rendered for another, when such services, by the imposition of a penalty, are manifestly deemed by the legislature illegal.

S. S. Bowne, for the plaintiff.

By the Court,

The first section of the act, *re- [ *471 ] gulating the practice of physic and surgery, 1 R. S. 448, provides that the president of every county medical society shall give notice to every physician and surgeon, not already admitted into such society, within the county, requiring him within sixty days to apply for and receive a cer

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tificate of admission as a member. Section second declares a forfeiture of the license of the physician or surgeon not complying with such notice. The sixteenth section forbids the practice of physic or surgery by any person, unless a license or diploma for that purpose has been obtained from one of the incorporated medical societies in this state, or the degree of doctor of medicine from the regents of the university, &e. The nineteenth section requires the physician to deposite a copy of his license with the clerk of the county where he resides; and in default thereof, he is declared liable to all the penalties provided by law, in the same manner as if he had no license. The twenty-fourth section disables every person, not authorized by law to practise physic or surgery, from collecting any fee by suit; and the twenty-fifth section subjects him to a penalty of $25 for each offence.

There was sufficient proof of the granting of the certificate of admission to a membership of the county medical society of Columbia, which was, at least, prima fade evidence of authority to practise. The first section of the act requires all physicians and surgeons within the county to apply for such certificate ; and it is but reasonable to presume it would not have been granted unless the party was deemed properly qualified to practise. The second section confirms this view; for the physician forfeits his license, and subjects himself to all the disabilities of the statute, if he fails to procure such admission. I am also inclined to think the evidence which was given competent to prove the diploma from the college at Fairfield. The witness identified the corporate seal, and had himself received a diploma from that institution, subscribed by the same president and secretary. Though he did not actually see them subscribe the paper, he had every means of becoming acquainted with their signatures; the delivery of it to him was an acknowledgment they had signed it. Besides, he was familiar [*472] with diplomas from the institution *under their signatures, and may be said to stand somewhat in the position of one who has acquired a knowledge of the hand-writing of others, by means of written correspondence, or in the course of business transactions, 1 Phil. 486 ; Cowen & Hill’s Notes, 1324, n. 914.

Then, was the deposite of a copy of the license in the county clerk’s office an essential pre-requisite ? I think not. The nineteenth section makes the physician “ liable to all penalties provided by law,” in case of default. It is insisted that penalties here includes the disability to sue for fees under the twenty-fourth section, as well as the forfeiture of the $25 under the twenty-fifth section. The provision being penal, should be strictly construed and limited to its technical common law meaning. That is fully accorded by restraining it to the forfeiture in the latter section. This view is confirmed by a reference to the language of the seventeenth section, which requires the physician coming from abroad, in terms, to file a copy of

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his diploma before he is entitled to practise. It is fair to presume similar language would have been used in respect to our own diplomas, had the legislature intended to apply a like rule. They, doubtless, regarded the pen* alty of $25 for each offence sufficient punishment for the neglect.

Motion to set aside report of referees denied.