#### Hiram Hyde, Respondent, *v.*B. Franklin McCreery, Appellant.

Third Department,

June 28, 1911.

Motor vehicle — negligence — failure to register machine.

The mere violation of a statute is not *per se*proofcof negligence on the part of the offender so as to subject him to an action in favor of a private individual who has no interest in the observance of the statute.

The provisions of the Highway Law requiring the owner of a motor vehicle to register the same and to display the registration number thereon are not intended to afford greater protection to the public.

In an action to recover for personal injuries caused by the defendant’s alleged negligence in the operation of his automobile it is error to charge the jury that they may consider defendant’s failure to register his machine, in violation of law, as *prima facie*proof of negligence.

The unlawful act of defendant in failing to register his ear did not contribute to the accident.

Betts, J., dissented.

■ Appeal by the defendant, B. Franklin McOreery, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Washington on the 17th day of January, 1911, upon the verdict of a jury for $2,000, and also from an-order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.

*Edward M. Angelí,*for the appellant.

*J. E. Sawyer,*for the respondent.

Sewell, J.:

The action was brought to recover damages for personal injuries alleged to have been caused by the negligence of the defendant. The accident occurred on the 9th day of June, 1910, in the city of Glens Falls near the intersection of Warren, Ridge and Glen streets, known as Bank square. The plaintiff and several other passengers had alighted from a trolley, car and were crossing the square, to take a car on the other side, when he .was struck by the defendant’s automobile, knocked down and bruised,

*730It was a disputed question of fact whether the defendant sounded a horn or gave any other warning to the plaintiff of the approaching car,, and it seems to me that the evidence was sufficient to take the case to the jury on the question of the freedom of negligence on the part of the plaintiff as well as the negligence of the defendant. -

The plaintiff was permitted, over the objection and exception of the defendant, to introduce evidence showing that the defendant had failed, for a period of more than five days, to register his vehicle and display the registration number as required by the Highway Law (Consol. Laws, chap. 25; Laws of 1909, chap. 30), and the court in submitting the case to the jury charged that *“*the law of this State requires that every person owning an automobile five days after he comes into the ownership of it must have a license to run the automobile. This defendant did not have such a license, and the fact that he did not have it is proof that he was running at'the time his automobile contrary to the law of the State. That is one element you may consider as *prima facie*proof of negligence against the defendant. It is not conclusive, but it is a thing you may consider in connection with it.” To these instructions the defendant excepted. . The defendant contends that the learned trial court erred in admitting this evidence and in charging that the jury might find that the defendant was negligent and liable for damages for doing the prohibited act.

The Highway Law provides, in effect, that no motor vehicle shall be used or operated upon a public highway unless the owner shall have caused it to be registered in the office of the Secretary of State, and shall also have the number assigned to it displayed on the back of the vehicle, except that any person purchasing a motor vehicle shall be allowed to operate it for a period of five days after the purchase and delivery thereof, provided that during such period it bears the registration number of the previous owner, and that a violation of any of these provisions shall be deemed a misdemeanor punishable by a fine not exceeding $100 for the first offense. (Highway Law, art. 11, §§ 282, 286, 289, 301.)

It will be observed that this statute does not purport to subject.an owner of a motor vehicle to civil liability for inju*731ries sustained while'doing the prohibited act, and that there is nothing in the statute to indicate that it was intended to afford greater protection to the public. There are numerous cases where it was held that a jury may find negligence and a liability for injuries resulting from the doing of an act prohibited by statute, but in each of these cases the statute was designed to prevent such injuries as were suffered by the individual claiming the damage, and the injuries were the direct or necessary result of the breach of the statute.

Our attention has been called to no case where it was held that the mere doing of a prohibited act is *per se*proof of negligence on the part of the offender and subjects him to a cause of action in favor of a private individual who had no interest in the observance of the statute. On the contrary, it seems to be well settled that with the duty imposed by a statute there must be the correlative right in the person injured to have it discharged to enable him to sue for a breach thereof.

It cannot be claimed that the performance of the duties imposed by this statute afford greater protection to the public or that the injuries to the plaintiff were the result of a failure to perform them. The danger of operating a motor vehicle is the same whether it is registered or unregistered, and it is apparent that the unlawful act of the defendant did not in any sense contribute to the accident.

The case is, therefore, not within the principle of the cases in which it has been held that the jury may find negligence and a liability for damages resulting from the doing of a prohibited act.

For these reasons we think that the judgment should be reversed and a new trial should be granted, with costs to abide the event.

All concurred, Houghton, J., in result, except Betts, J., dissenting.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.