#### The People of the State of New York, Respondent, *v.*Tony Martinitis, Appellant.

Second Department,

June 4, 1915.

Crime — highway — driving on wrong side of road — not a misdemeanor under section 43 of Penal Law — civil penalty.

Driving on the left side of a highway is not a nuisance, and does not violate section 1580 of the Penal Law, nor is it a misdemeanor within the meaning of section 48 of the Penal Law which involves a wrongful purpose. Driving on the left side of a road subjects the offender only to a *447civil penalty, to be recovered by the party injured, in addition to the damages caused by such violation.

Hence, a driver of a farm wagon cannot be convicted under section 43 of the Penal Law for a misdemeanor for driving on the wrong side of the road in the evening without lights, thereby causing injury to a motor car and the driver thereof.

Appeal by the defendant, Tony Martinitis, from a judgment of the Court of Special Sessions in the town of Oyster Bay, Nassau county, N. Y., rendered against him on the 8th day of January, 1915, convicting him of the crime of violating section 43 of the Penal Law, and also an appeal from the judgment and order of the County Court of Nassau county entered in the office of the clerk of said county on the 27th day of February, 1915, affirming said conviction.

*Harry W. Moore [John P. McCarthy*with him on the brief], for the appellant.

*Lewis J. Smith, District Attorney [Charles I. Wood, Assistant District Attorney,*with him on the brief], for the respondent.

Per Curiam:

On December 12, 1914, at about 7:30 in the evening, defendant was driving a farm wagon with two horses along a public road, running between Oyster Bay and Bayville. A motor car passing along this road met the defendant’s team, which had no lights, so that the two vehicles collided. The shaft of the cart passed through the motor car’s windshield, injuring the driver and another in the car.

The evidence warranted the jury in finding that the accident was because defendant drove on the wrong side of the road.

Was this a violation of section 43 of the Penal Law ? This is the familiar provision which makes a misdemeanor any willful and wrongful act which seriously injures the person or property of another, or which seriously disturbs or endangers the public peace or health, or which openly outrages public decency, for which no other punishment is expressly prescribed.

This defendant negligently drove on the wrong side of the highway, which resulted in injury to person and property. *448But this section of the Penal Law requires that the injuring act shall be *willful.*There must exist an intention designedly and purposely to cause injury. Not every intentional act is willful. It must be with wrongful purpose, or with a design to injure another, or one committed out of mere wantonness or lawlessness. *(Wass*v. *Stephens,*128 N. Y. 123, 128.) Driving on the left side of the highway is not a nuisance, and does not violate section 1530 of the Penal Law.

The conviction in *People*v. *Darragh*(141 App. Div. 408), cited on this point, is not applicable. Darragh was operating a motor car at high speed in a closely built up section of the city. He drove into a crowd of boys and killed one. He was rightly convicted, since his excessive speed was a misdemeanor (Highway Law [Consol. Laws, chap. 25; Laws of 1909, chap. 30], §§ 291, 301), giving to his act of running down the boy the character of manslaughter. (Penal Law, § 1050, subd. 1.) But driving on the left side of a road- is not a misdemeanor. It subjects the offender only to a civil penalty of five dollars to be recovered by the party injured, in addition to the damages caused by such violation. (Highway Law, §§ 326, 332.) Modern traffic conditions upon country roads at night may well call for more strict regulations to prevent collision, but this consideration is for the Legislature. A civil penalty having been affixed for driving on the wrong side of the road, that infraction is not subject to prosecution under the Penal Law.

The judgment of conviction of the Court of Special Sessions and order of the County Court of Nassau county affirming said conviction should, therefore, be reversed, and the defendant discharged.

Jenks,' P. J., Thomas, Carr, Bioh and Putnam, JJ., concurred.

Judgment of conviction of the Court of Special Sessions and order of the County Court of Nassau county affirming said conviction reversed, and defendant discharged.