(dissenting):
I agree with the majority of the court in-holding that a non-suit was properly granted as to the second cause of action alleged in the complaint for the reasons stated in the opinion of Justice Spring, but I dissent from the holding that the trial court improperly granted a nonsuit as to the first alleged cause of action, because, in my opinion, the defendant incurred no individual liability for the acts done by him in the *102premises, and so notwithstanding upon the evidence it was a question of fact as to whether' the calf seized by defendant and killed was more than four weeks of age. The. defendant at the time he seized such calf was not an officer of the State. H© was the mere agent of the Commissioner of Agriculture and whatever he did in the premises was' done under the direction and under instructions given him By the Commissioner. Under such circumstances I think the defendant was not personally liable for such acts, hut that if the plaintiff had a cause of action because of the alleged illegal seizure of his calf, the action should have been brqught directly against the Commissioner of Agriculture or in the Court of Claims against the State. (Wright v. Eldred, 46 Hun, 12; affd., 137 N. Y. 556; Shaver v. Eldred, 114 id. 236.) In the Wright Case (supra) the action was brought to recover for injury to the plaintiff’s premises, alleged to have been caused by the act of the defendant- in setting water back onto them. The defendant attempted to justify his action by producing a letter written by the Assistant Superintendent and approved by the Superintendent of Public Works, authorizing him to do the acts complained of, and it was held that the defendant was not personally liable for the acts thus done by him. Mr. Justice Bkadley, in writing the opinion of the General Term, at the bottom of page 17, summed up the whole matter as follows: “ The defendant did no more, and he may be deemed to have legitimately acted under the authority and direction of the Superintendent of. Public Works, and therefore incurred no personal liability.” One of the earliest cases bearing upon this subject is Waggoner v. Jermaine (7 Hill, 357). The head note in that case is as follows: “The canal commissioners, under the act for the construction of the Crooked Lake Canal, caused surveys, etc., to be made, and then adopted a plan, as required by the act, preliminary to commencing the work; but the plan had no reference to the defendant’s dam, standing at the ' outlet of the .lake. Afterward, however, the commissioners, by way of substitute for.certain regulating gates contemplated by the plan, permitted the defendants to increase the height of their dam ten inches, in order to effect the same object for which the gates were designed; and thereby the plain*103tiff’s lands lying above tbe dam were injured. Held, that, no action lay against tbe defendants for tbe injury, they having acted under tbe authority of tbe commissioners.”
Tbe case of Litchfield v. Bond (186 N. Y. 66), cited by appellant’s counsel, is not in conflict with tbe cases above cited. That action was brought directly against tbe State Engineer and Surveyor and officers of the State, and it was held, in effect, that the State could not commit a trespass, and the action- of its officers being contrary to law they were responsible individually. To tbe same effect is Robinson v. Chamberlain (34 N. Y. 389).
But in tbe case at bar tbe Commissioner of Agriculture 'was tbe public officer ánd tbe defendant bis mere agent, and acting solely, as the evidence shows, under his employment and direction, and be did soiely and only as be was directed. This is uncontradicted in the case. Hence, tbe defendant was not liable' and tbe action, if a cause of action existed in plaintiff’s favor, should have been brought directly against the Commissioner of Agriculture. Unless compelled so to do by authority, we ought not to hold that a mere agent, employed by and acting directly under the authority, employment and direction of tbe Commissioner of Agriculture, a public officer charged with tbe duty of tbe enforcement of tbe pure food laws, so called, is personally liable for acts done by him in carrying out such directions. Such rule, if adopted, would make it extremely difficult to procure agents who would carry out bis instructions, if in case the instructions were wrong such agent was personally liable for acts done in pursuance thereof.
In'the case at bar all reasonable means were taken to ascertain whether or not the calf in question was under four weeks of age. Tbe witness Hulbert, who was plaintiff’s agent in purchasing tbe calf and who claimed to have marked this calf, testified on cross-examination: “ I marked tbe calf because it was a light calf, and I thought it might be seized in New York.” ■ Another- witness called by the plaintiff and .in his employ testified: “ I marked whatever calves were marked because they were small, and because I was afraid they would be seized in New York.”. Another witness called by the plaintiff testified: “ The calf was a small dark calf. ⅜ * * From *104his appearance I should think the calf was about three weeks old.” The defendant testified that the calf was under four Weeks old. One. of defendant’s witnesses, Harry D. Grill, one of the State veterinarians, and a man of great skill and experience, testified: The calf was “under three weeks of age.” Inspector .Clark stated that the calf was. under four weeks of age.
Having the opinions of all these witnesses, the defendant seized the calf and caused it .to he killed, as it was his duty to do, under the directions given him by the Commissioner of Agriculture. If under' such circumstances the inspector, the defendaxit in this case, must permit such calf to be sold as food in the city of New York, or take the responsibility of having a personal action brought against him for a tort in case the assertion of the plaintiff or of some other witness is believed by a jury that the calf was more than four weeks of age, we may not expect such inspector to take the chances of such a litigation against him, but he will allow the citizens of New' York city to continue to eat bob veal.
The judgment appealed from should be affirmed, with costs.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event.