Opinion
Argued January 22, 1913
Decided February 25, 1913
C.L. Andrus for appellant.
Archibald R. Watson, Corporation Counsel ( Clarence L. Barber and Terence Farley of counsel), for respondent.
The plaintiff claims damages from the defendant for having, as he alleges, trespassed upon "his property rights." The plaintiff, being engaged in dairy farming and being a member of a creamery company, complains that, in the year 1909, the defendant, through his agents and employées, wrongfully and unlawfully, entered upon his premises and interfered with his business. More particularly, he alleges that, on December 6th, 1909, "the said defendant, assuming to be a public officer and Chief of the Division of Sanitary Inspection of Public Health, and assuming to have the power and authority to prevent the sale of milk supplies in the City of New York, * * * unlawfully and wrongfully * * * stopped the delivery of plaintiff's milk product to the creamery, * * * ordered and directed said creamery company not to receive the milk of said plaintiff and, further, directed that if said creamery company did receive the same, the right to dispose of said product in the City of New York would be stopped and the permit, or license, to sell the same would be revoked, and that * * * because of such directions and threats, so made by said defendant assuming to act as said Chief of Division of Sanitary Inspection, said plaintiff was obliged to and did discontinue the delivery of his dairy product to said creamery." The answer of the defendant, not admitting all that was alleged against him, in substance, justified what action he may have taken in the premises, as having been done "as a health officer of the City and State of New York, in good faith and on behalf of and under the Department of Health, pursuant to its regulations, ordinances and health laws." When the case came to be tried, it appeared by the plaintiff's evidence that in October, 1909, he had received a letter, purporting to come from the department of health of the city of New York and signed by the defendant as "Chief of the Division of General Sanitary Inspection;" in which he was informed, in substance, that, as the result of an inspection of his dairy farm, certain insanitary conditions were found to exist, which, if not improved within a certain time, would require notice to be given to the vendors of his milk in the city of New York that it was produced in violation of the terms of their permit. This was followed by a letter from the defendant addressed to the creamery company, dated December 6th and signed as in the previous letter. It informed the company that "the rules of the Department for the production of clean and wholesome milk were still being violated" by the plaintiff and gave notice not to include his milk in future shipments. Recognizing this communication as one from the department of health of the city of New York, the plaintiff addressed a reply to the department, on December 9th, referring to the letter of December 6th and stating that he had been making improvements to his premises; that he was willing to comply with any reasonable demands, if informed as to the changes desired, and that he was interested with all the patrons of the creamery in the effort "to produce a wholesome milk product." On December 11th, specifications concerning plaintiff's stable, dairy and herd were sent him by the department. On January 14th, 1910, the plaintiff, being notified by the manager of the creamery to that effect, recommenced his delivery of milk and the damage, alleged to have been sustained by him, was for the interruption of his sales between December 8th, 1909, and January 14th, 1910.
The evidence showed that the defendant was never upon the plaintiff's premises and that those, who went there as inspectors for the department of health, were received without objection by the plaintiff and conducted by him over his farm and through his buildings. It showed that all communications from the defendant to the plaintiff were official in their form and character. At the conclusion of the plaintiff's case, his complaint was dismissed and the judgment, thereupon entered in favor of the defendant, was affirmed at the Appellate Division.
I think that the plaintiff was properly nonsuited; for, upon this state of facts, what cause of action against the defendant was apparent? If the plaintiff's complaint was in trespass, the evidence failed to show an unauthorized entry upon his premises, either by the defendant, or by any agent. If, however, the alleged "trespass upon the property rights of the plaintiff" consisted in causing the interruption in the sale of his milk product, then, no cause of action was made out. It will be observed that the complaint charged the defendant with doing the acts complained of, while "assuming to be a public officer and Chief of the Division of Sanitary Inspection of the Department of Health." It is clear, if the defendant was not an officer of the health department, that no act of his could have prevented the shipment by the creamery of plaintiff's milk to New York city. If, as is probably true, what the plaintiff intended was to charge an illegal exercise by the defendant of official power, or of the powers conferred upon the board of health, then I find no cause of action established. The complaint does not allege that the defendant acted in excess of his authority as an officer of the department of health, nor that he acted in bad faith, or without due care, or maliciously, and, therefore, in what he did as such officer, he was protected by the statute against the consequences. Section 1196 of the Greater New York charter provides, in substance, that no member, officer, or agent, of the department of health shall be sued, or held to liability, for any act done in good faith, and with ordinary discretion, on behalf of the department, or pursuant to its regulations, ordinances, or health laws. "And any person whose property may have been * * * injured, pursuant to any * * * action of said Department of Health or its officers, for which no personal liability may exist," is remitted by the statute to "an action against the city for the recovery of the proper compensation or damage." Acting as an officer of the department of health, in good faith, if the defendant's acts caused any loss to the plaintiff, the latter's exclusive remedy, upon the ground of an illegal exercise of power, was by an action against the city. The case shows that the defendant did nothing except as an officer of the department; taking action upon the reports made by agents as to the insanitary conditions, under which the plaintiff's milk was produced.
The argument, that the department of health of the city of New York exceeded its lawful powers, "in assuming to regulate the method of the production of milk by the plaintiff and in prohibiting the creamery company from including plaintiff's milk in its shipments," is unsound; as is the argument that the statute, if conferring such an authority, was invalid, as delegating to the officers of the municipality jurisdiction over the affairs of another locality. The department of health of the city of New York is charged by law with the responsibility of preventing pestilence and disease in the city of New York. Its duty is to enforce all laws applicable to the preservation of human life and the promotion of health, and such as relate to the use, or sale, of unwholesome, deleterious, or adulterated, food. In the faithful and efficient performance of that duty, the whole state, as well as the city, is concerned and the department must be deemed to possess whatever power is needed to make effective the express powers conferred. So broad is the responsibility with which the department of health is charged, that it is to give all information in its possession, relating to the existence and cause of disease, to the local health authorities of any city, village, or town, which may request the same, and to "add thereto such useful suggestions" as experience may supply. Of the food supplies introduced into the city of New York, milk is one of the most important. It is, now, a matter of common knowledge that, if infected, it carries with it the germs, or bacilli, of dangerous and epidemic diseases. It is the food of the infant and it is an important element of the food of the adult. It may be infected as it comes from the cow; or it may be contaminated by reason of the insanitary conditions of the dairy. Whatever, therefore, the department of health may do towards preventing the introduction of milk into the city of New York, which its officers have reason to believe to be unwholesome and deleterious, is in the performance of a statutory duty. It is unreasonable to say that the department of health, in exercising such a power, renders itself amenable to the charge of exercising an extra territorial jurisdiction. In notifying the creamery company not to include the plaintiff's milk in its shipments to the city, it was acting for the protection of the inhabitants of the city of New York and, therefore, for local interests. There was no interference with the plaintiff's conduct of his farm, or business, except as he proposed to supply milk to the city of New York; there was simply an embargo laid upon the introduction within the city of New York of any milk not produced by him under conditions specified by the department. It had the right to exact from all shippers of milk a compliance with such conditions as would reasonably tend to a pure product for the use of the citizens, as a condition of permitting its sale in the city of New York. In exercising the supervision and in taking the preventive measures, which appear in the evidence, the department of health was properly and reasonably executing the duty imposed upon it by the statute of conserving the public health; in which, as I have already observed, the state at large is, equally, interested with the city.
For these reasons, I advise that the judgment appealed from be affirmed.
CULLEN, Ch. J., WERNER, HISCOCK, COLLIN, CUDDEBACK and MILLER, JJ., concur.
Judgment affirmed, with costs.