People ex rel. Bartlett v. Medical Society of the County of Erie , 25 How. Pr. 333 ( 1863 )

Davis, Justice.

I am led by my reflections in this cause to the conclusion that the application of the relator was improperly rejected. It is true that he had been guilty of gross acts of empiricism in the publication of the advertisement annexed to his affidavit, and had that publication been continued at the time of his application, I should regard the action of the society as entirely justifiable. But it appears without contradiction, that it had been abandoned for years,' and that the practice of the relator had been changed from the specialty mentioned in the advertisement, to one of a general character. There are no allegations made by defendant affecting the moral character of the relator, and I feel constrained to consider his course, at the time of his first establishing himself in Buffalo, in the light of youthful indiscretions, rather than unpardonable offences. .The locus penitentice was not shut against him, and his abandonment of his empirical conduct for so long a time before his application, affords satisfactory evidence of an intent to avail himself of the right and duty.to reform.

While I have no doubt that the members of the society who voted for his exclusion were animated by a high sense of duty to their profession, yet they seem to me to have gone beyond their just powers in refusing him admission for acts which the relator had himself repudiated and abandoned.

If the relator should resume his obnoxious course after his admission, he will be justly liable to the censure of the society, and ultimately to removal from its membership. But with the evidence of his present good conduct, and of his adhesion to and intention to conform to their rules and ethics, he was legally entitled to admission to the society, notwithstanding the professional errors of his early practice.

The relator is entitled to the writ prayed for,