#### PEOPLE v. VAN FRADENBURGH.

(Supreme Court, Appellate Division, Third. Department.

March 11, 1903.)

1. Board of Health — Orders—Validity—Collection of Refuse.

In the absence of proof that fresh refuse from a sanitarium for consumptives was more dangerous to the community when collected and exposed as food for hogs and fowls than fresh refuse collected from a hotel or other public house, a village board of health had no power to prohibit defendant from collecting such refuse from such sanitarium and conveying the same through the village.

Appeal from Sullivan county court.

Edward Van Fradenburgh was convicted of willfully violating a lawful order of a board of health, and he appeals.

Reversed.

The defendant was indicted for a misdemeanor in willfully violating a lawful order of the board of health of the village of Liberty, Sullivan county, N. Y. The crime is claimed to have been committed under section 397 of the Penal Code, which provides that a person who willfully violates, or refuses or omits to comply with, any lawful order or regulation prescribed by any board of health, is punishable by imprisonment not exceeding one year, or a fine not exceeding $2,000.

The defendant had been collecting from the Loomis sanitarium for consumptives refuse from the table and kitchen, and depositing it upon his premises for consumption by his chickens and hogs. This refuse was allowed to stand for such a time that it created a bad stench, and, after having been duly notified, he was directed by the board of health to remove the same from his premises, and was forbidden from drawing into the corporate limits of said village of Liberty any more of such refuse from said sanitarium. He did remove what was then upon his premises, but, in disobedience of the order of the board of health, he did draw further refuse from the sanitarium upon the said premises in the village of Liberty. For this he was indicted and convicted.

Argued before PARKER, P. J., and SMITH, LYON, CHASE, and CHESTER, JJ.

W. J. Groo, for appellant.

Frank S. Anderson, for the People.

SMITH, J.

The gist of the crime of which the defendant has been committed is the disobedience of a lawful order of the board of health. Unless, then, the order disobeyed was one lawfully made by the board of health, the defendant has been guilty of no crime. There is no proof that this refuse from the sanitarium for consumptives is any more dangerous to the community when exposed than the refuse from any hotel, and we cannot assume such to be the fact in sustaining this conviction. Has the board of health, then, the right to forbid a person from bringing into the village refuse from a hotel or any other public house? Under the evidence in this case, such refuse, while it is fresh, is wholesome food for hogs and fowls. The menace to the public health lies in permitting it to remain until it decays and throws off a stench which is prejudicial to the comfort of the community, if not to its health. As long, therefore, as the mere bringing into the community of fresh refuse from a public place has in it no element of threatened danger to the public health or comfort, I am unable to see by what authority the board of health is per* *835mi tied to prohibit the same. For this reason the people have failed to prove the commission of a crime, and the judgment of conviction must be reversed.

Judgment and order reversed, and new trial granted. All concur.