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The power of the county court of Monroe County to entertain a motion to set aside a judgment of the Municipal Court of the city of Rochester, entered upon the plaintiff's default, from which an appeal has been taken, was not derived solely from section 257 of the charter of the city of Rochester, in force previous to the present charter of cities of the second class, which provided that the motion must be made within twenty days after the entry of judgment in the Municipal Court, but is also conferred by section 3064 of the Code of Civil Procedure, which is made applicable to the Mu. nicipal Court of the city of Rochester by section 3226 of that code, and which does not prescribe such a limit.

Albertson v. Behrend Manufacturing Co., 47 App. Div. 232; 96 St. Rep. 640; 62 Supp. 640.

The county court cannot grant an order opening a default and vacating the judgment on a motion made before a return has been made by the justice.

Kellock v. Dickinson, 5 App. Div. 515; 39 Supp. 38.

1. Manifest injustice.

The county court cannot set aside a judgment taken by default in a justice's court and grant a new trial on the ground that manifest injustice was done, where such injustice in shown only by an affidavit stating that the judgment is larger in amount than it ought to have been.

Bates v. Gorman, 8 Civ. Pro. 180.

A judgment of a justice's court taken by default will not be set aside and a new trial granted by the county court on appeal upon the ground that manifest injustice has been done, where it does not appear what the defense is or that defendant has any.

Young v. Conklin, 3 Misc. 122; 23 Supp. 993.

2. Satisfactory excuse.

A county court on appeal cannot direct a new trial of an action decided in a justice's court in favor of plaintiff on defendant's default, unless defendant renders a satisfactory excuse for his default.

De Bevoise v. Ingalls, 88 Hun, 186; 68 St. Rep. 423; 34 Supp. 413.

The fact that defendant on the return day of a summons asked the justice to wait until she could obtain a lawyer or adjourn the hearing, and, when she could not find an attorney after diligent search, the justice po?lowed the plaintiff to take judgment by default, is a satisfactory excuse.

McCarthy v. Crowley, 1 Silv. S. Ct. 364; 24 St. Rep. 815; 5 Supp. 675.

An asidavit stating that defendant forgot the time the summons was returnable, and setting forth that he was in charge of a large number of men and with them was engaged in loading a quantity of stone upon canal boats


and upon railroad cars, and that, in the hurry attendant upon the work, he forgot the hour, shows a sufficient excuse for his default.

Bates v. Gorman, 8 Civ. Pro. 180.

The county court will not grant a new trial in the justice's court, where the defendant purposely failed to appear on the trial, relying upon his right under the complaint to a new trial in the appellate court on appeal, which was cut off by an amendment of the complaint, allowed by the jus tice on an adjourned day in the absence of the defendant, reducing the amount demanded below fifty dollars.

Risley v. Van De Linder, 17 Misc. 661; 41 Supp. 402.


(55 App. Div. 410; 100 St. Rep. 952; 66 Supp. 952.]

(Supreme Court, Appellate Division, Fourth Department. November, 20,



TION_VALIDATION-RETROACTION. Laws 1880, c. 513, § 4, provides that a person who holds a medical diplo

ma from a school in another state may be registered to practice in this state on securing the approval of his diploma by the faculty of an incorporated medical school of this state and furnishing such other qualifications as they may require, and section 3 makes a violation of the act a misdemeanor. Laws 1893, c. 661, § 148, declares that a resigtration which is not legal because of some unintentional omission may be validated by obtaining from the regents of the state university a certificate of validation. Plaintiff's registration in 1886 was imperfect because his diploma was not approved by any medical faculty, and in 1899 the board of regents of the state university issued a certificate validating such registration. Held, that plaintiff could not recover for medical services rendered in 1894, since at that time he had no li. cense, and to give a retroactive effect to section 148 would allow a recovery for services which constituted a misdemeanor at the time they were rendered.*

Adams, P. J., and Laughlin, J., dissenting.

*For note on “Registry of Physician as Prerequisite to Compensation," see 8 Ann Cas. 190.

Appellate Division.


Appeal from Monroe county court.

Action by John E. Ottaway against Mary Ann Lowden. From a judgment in favor of defendant, and from an order denying a new trial, plaintiff appeals. Affirmed.


P. J. Dobson, for appellant.

John Desmond, for respondent.

SPRING, J. The plaintiff was engaged in the practice of medicine in the city of Rochester, and brought this action to recover for medical services rendered defendant in the year 1894, and claims due $273, besides interest. The nonsuit was granted on the ground that the plaintiff, at the time of the rendition of the services, was not legally qualified to practice his profession, and that is the only issue on this appeal. The plaintiff was graduated from the medical department of the University of Michigan in 1886, and commenced practice in Penn Yan, Yates county, in this state. On the 8th day of October in that year he caused his affidavit to be registered in the office of the clerk of that county, setting forth that he held a diploma from the University of Michigan, and that was his authority for the practice of physic and surgery. In 1889 the plaintiff moved to Monroe county and, before engaging in the practice of medicine in that county, caused a transcript of the said affidavit to be filed in the clerk's office of that county. On January 10, 1899, the state medical board recommended that the "imperfect registration" of the plaintiff “be made valid,” and this was supplemented by the certificate of the said board of regents of date February 2, 1899, reciting the facts presented to the state medical board, and the recommendation that was made by that body, and this certificate was filed in Monroe county February 14, 1899. On the 8th day of November, 1899, an entry was

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made in the register of the physicians and surgeons in the county of Monroe stating that plaintiff's authority for the practice of medicine was his university diploma "registered in Yates county October 8, 1886, registered on certificate from Yates county." Chapter 513 of the Laws of 1880, which is entitled “An act to regulate the licensing of physicians and surgeons, was in force at the time the plaintiff began the practice of medicine in Yates county. Section 4 of that act prescribes the procedure by which a person coming into the state may be licensed to practice physic and surgery. If he holds a diploma issued to him by a medical school without the state, he can secure the indorsed approval “of the faculty of such incorporated medical college or medical school of this state.” There must, however, accompany the presentation of the diploma to the faculty "satisfactory evidence of his good moral character,” together with "such other evidence, if any, of his qualifications as a physician and surgeon as such faculty may require;" that is, the faculty of the medical college in this state to which this evidence is presented is the examining board which passes upon his acquirements to engage in the practice of medicine, and they use his diploma as a basis, but their approval must include not alone the diploma, but his qualifications and moral character. There is no pretense that plaintiff ever attempted to comply with the plain requirements of this statute. Chapter 647 of the Laws of 1887 is another act in regulation of the licensing of physicians, but it does not in any way lessen the restrictions of the statute referred to. Subdivision 3 of section 2 permits the indorsement and approval to be made not only by the faculty of a medical school or college in the state, but also by the regents of the state university "on the recommendation of a legally constituted board of medical examiners of this state." Chapter 500 of the Laws of 1890 is amendatory of the act of 1887, and subdivision 3 of section 2 vests the right of approval in the regents of the university alone. Chapter 661 of the Laws of 1893 is an elaborate act pertaining to the public health, and regulating the registration and licensing of physicians and surgeons. By that act

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the authority to issue licenses still rests with the state board of regents, and its permission is an indispensable prerequisite to engaging in the practice of physic and surgery. These enactments show an unfaltering purpose to exclude from the medical profession quacks and charlatans who seek to ply their calling without the essential preliminary training. The statute last referred to at section 148 provides that, if these has been an “imperfect registration" through some technical or unintentional omission, the board of regents may, in the manner therein provided, “make valid the previous imperfect registration.” It is under this provision that the plaintiff claims he is now duly licensed to continue the practice. Assuming this to be correct, there is no suggestion in the act that this provision is to be retro active in effect. Such a construction will not be given to the act unless that is the only deduction from its language. Geneva & W. Ry. Co. v. New York Cent. & H. R. R. Co., 163 N. Y. 228-232; 57 N. E. 498; N. Y. & Oswego M. Railroad Co. v. Van Horn, 57 N. Y. 473-477. When the services in question were rendered, plaintiff possessed no license, and had no authority to prosecute his calling. The state board cannot endue him with a cause of action where none existed before. It may do away with the necessity of any further license or registration by injecting life into the papers he has already filed, and give him a “clean bill of health” for the future; but that under this act is the extent of its authority. A license during all this period was necessary to enable the plaintiff to practice his profession. Confessedly, he had none. There is no warrant in the law for the state board to determine that he in fact during all this period was licensed to practice. Section 3 of chapter 513 of the Laws of 1880, above mentioned, makes a violation of the provisions of the act a misdemeanor. A similar provision is contained in the cognate statute (Laws 1887, c. 647, § 6; Laws 1893, c. 661, § 153). The agreement with the defendant, therefore, is void, and no recovery can be had. Fox v. Dixon, 34 St. Rep. 710; 12 Supp. 267. In that case, which is cited approvingly in Accetta

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