FIRST DEPARTMENT, MAY, 1904.

[Vol. 94. Court, entered in the office of the clerk of the county of New York on the 30th day of November, 1903, affirming a judgment of the Municipal Court of the city of New York, borough of Manhattan, in favor of the defendant, entered on the 2d day of July, 1993.

Theodore Connoly, for the appellant.

Thomas W. McKnight, for the respondent.

O'BRIEN, J.:

The action was brought to recover a penalty provided by section 1239 of the revised Greater New York charter (Laws of 1901, chap. 466) for a violation by the defendant of said section in failing to report to the department of health a written copy of the register of birth of James Driscoll. The defendant is a practicing physician, and his claim is that he mailed the certificate of birth to the department.

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Section 1237 of the revised Greater New York charter provides, among other things, that it shall "be the duty of physicians * * * to keep a registry of the several births in which they have assisted professionally * and to report the same within ten days to the department of health." And by section 1239 of the revised charter it is provided that "for every omission of any person to make and keep the registry of births required by the preceding sections, and for every omission to report, a written copy of the same to said department of health within ten days after any birth * * * provided to be registered, and for every omission to make the report of any * * birth * * * the person guilty of such omission shall one hundred dollars."

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be liable to pay a fine of

The assistant register of records of the borough of The Bronx, to whom the report should have been made, testified that there is a regular form supplied by the department of health upon which the notification by a physician is made, and that the general rule is to mail the notices, so that they reach the health department through the post office. The appellant contends that this is not a compliance with the provisions of the revised charter, and that to relieve themselves from the penalty, the duty is imposed upon physicians of personally filing such certificates.

We do not deem it necessary to discuss this question at any length,

FIRST DEPARTMENT, MAY, 1904.

App. Div.] because the opinion rendered by the learned Appellate Term (Department of Health v. Owen, 42 Misc. Rep. 221) fully covers it, and we agree with the views therein. expressed that the construction for which the appellant contends cannot be sustained, and that a physician complies with the statute when he has properly made out a certificate and has mailed it postpaid properly directed to the department of health. Although the statute does not require that the certificate should be taken in person by the physician to the board of health, it places the burden upon him, where it does not appear that the certificate was filed with the board, of furnishing the evidence of its having been properly and duly mailed if he would escape the penalty imposed for the omission to comply with the provisions of law. The more serious question is as to whether the notice here was actually mailed within the ten days. Upon this we have the defendant's testimony which, although it is not as positive and satisfactory as could be wished, was sufficient to justify the conclusion at which both the Municipal Court and the learned Appellate Term arrived, that the notice was properly mailed.

Summarizing the defendant's testimony, he says that he attended at the birth of the child and made a record thereof by entering it in his books and preparing a copy of such record for the health board; and in reply to the question: "What did you do with that certificate?" He answered, "Put it in the letter box as near as I can remember."

Were this all of his testimony, we should not deem it sufficient; but he further testified that he took the certificate, put it into an envelope, directed the envelope to the board of health, bureau of records, Fifty-fifth street and Sixth avenue- which concededly was the place to which such certificates should be sent - put a stamp on the envelope, and put it in one of the regular mail boxes of the government. When cross-examined with reference to the exact date, he could not give it, although he stated positively that the notice was made out and sent within the ten days. From his further testimony it would appear that the child died within seven days of its birth, and that he sent to the health board a certificate of the death; and, when cross-examined as to when he mailed this latter. certificate, he was much more hazy as to the date and manner of mailing it. With reference, however, to mailing the certificate of

FIRST DEPARTMENT, MAY, 1904.

[Vol. 94.

birth, he again swore, on redirect examination when his attention was again called to the subject, that while he could not fix the date nor the place positively, it was within the ten days required by law, and that he was quite sure that he mailed it personally.

We think, therefore, as already said, that although the defendant might have been a little more definite as to the date and the particular letter box in which he placed the notice, in view of his testimony that he made it out and placed it in an envelope duly stamped and properly directed, and that he personally placed it in a letter box, there was sufficient upon which to rest the conclusion of the Municipal Court and the Appellate Term as well as the decision of this court that the certificate was actually mailed by the defendant to the board of health.

It follows accordingly that the determination of the Appellate Term affirming the judgment of the Municipal Court should be affirmed, with costs.

PATTERSON and MCLAUGHLIN, JJ., concurred; VAN BRUNT, P. J., and LAUGHLIN, J., dissented.

VAN BRUNT, P. J. (dissenting):

I dissent. The statute was in no way complied with.

LAUGHLIN, J. (dissenting):

I am of opinion that the Legislature intended to make it the duty of a physician not only to make out and keep a register of the births he has attended professionally, but also to see to it that a copy of the entry in such register concerning a birth reaches the department of health within ten days. Of course it is not necessary that he should present it in person. He may employ the mails or any agency for the purpose of transmission; but, in that event, he must by inquiry or otherwise ascertain that it has reached its proper destination within the time prescribed therefor by the statute. The language employed is fairly susceptible of this construction and the efficiency of the statute requires it. The construction given in the prevailing opinion opens the door to collusion and corruption and will render the law ineffectual. Physical or mental inability to comply with the law would doubtless be a defense to a prosecution for the penalty; but in the absence of such disability it was clearly competent for the Legislature to require an individual

App. Div.]

FIRST DEPARTMENT, MAY, 1904.

practicing a profession requiring a license to perform, as a condition of his right to practice his profession, an act manifestly justified by public policy and essential to the enforcement of the criminal laws and to the establishment, preservation and enforcement of personal and property rights. This construction of the statutes relating to the filing of certificates of births, marriages and deaths will not impose an onerous burden upon the practitioner who wishes to comply with the law. If he sends the certificate through the mail or otherwise than by a personal delivery, he may readily ascertain by telephonic communication whether it has been received, and there should be no difficulty in having an understanding with the department of health that the receipt of such certificate will be timely acknowledged. The reputable, careful practitioner will take pride in observing the law. The penalty was only necessary to compel compliance by the disreputable and negligent members of the profession. It is no reflection on the medical profession, the great body of whom are conscientious upright citizens, to say that in it as in all other professions there are unfortunately some who could for a sufficient consideration be induced to omit filing a certificate of death, marriage or birth. The construction I have indicated will remove this temptation and will naturally insure the accuracy and completeness of the official records.

Determination of Appellate Term affirmed, with costs.

TERENCE A. SMITH, Respondent, v. THOMAS J. DUNN and BARTHOLOMEW DUNN, Appellants, Impleaded with BESSIE MAHON, as Administratrix, etc., of BERNARD MAHON, Deceased, Respondent.

HENRY W. MAYO, Respondent.

request by, for fees in excess of the statutory allowance · when it disqualifies him.

Section 3296 of the Code of Civil Procedure, relative to a referee's fees, does not contemplate that the referee is to fix his compensation, or that the parties to an action which is proceeding before a referee are to be placed in a position of either having to grant or refuse an application by the referee to be allowed fees in excess of those fixed.

FIRST DEPARTMENT, MAY, 1904.

[Vol. 94.

When a referee requests the counsel in a case to agree that his fees be fixed at a rate exceeding that allowed by the Code of Civil Procedure and be paid by the prevailing party, and one of the counsel refuses to accede to that request, if such counsel believes that by so doing the referee has become prejudiced against him, he is entitled to have the case tried before another referee, even though the referee was not in fact prejudiced against him by the refusal. The State is bound to furnish to every litigant not only an impartial judge, but a judge who has not by any act justified a doubt of his impartiality; and when a referee has placed himself in such a position that a party to an action is justified in feeling that he is not impartial, the party entertaining such a conviction should not be compelled to continue the trial of the case before such referee. This feeling on the part of a party to the action must be based upon some act of the judicial officer in his conduct of the litigation.

REARGUMENT of an appeal by the defendants, Thomas J. Dunn and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of December, 1903, denying the said defendants' motion to set aside so much of an interlocutory judgment theretofore entered in the action as appoints Henry W. Mayo referee, and to appoint a new referee to proceed under the said interlocutory judgment.

Jacob Marks, for the appellants.

Jacob Fromme, for the plaintiff, respondent.

William B. Hornblower, for the referee, respondent. INGRAHAM, J.:

In this action, which was brought for an accounting between copartners, an interlocutory judgment was entered directing an accounting and appointing a referee to take and state the accounts of the copartnership. This accounting was brought on before a referee on September 28, 1903. From the affidavits upon which this application was made, it appeared that as soon as the counsel for the defendants Dunn arrived in the referee's office, the referee made this statement in the presence of counsel for the plaintiff and counsel for the defendants Dunn: "It is customary for a referee before proceeding with a reference to enter into some agreement as to his fees. I have thought over the matter, and think that $15 a session would be about right. I have to neglect my other business to