Skinner v. Phelps , 8 N.Y.S.2d 520 ( 1938 )

In an action for personal injuries alleged to have been caused by the bite of a dog, defendant appeals from a judgment in favor of plaintiff, entered in the office of the clerk of the City Court of Mount Vernon. Judgment reversed on the law, with costs, defendant’s motion for judgment granted, and complaint dismissed, with costs. We find that plaintiff was bitten when she attempted to stop a fight between her dog and the dog of the defendant. It is doubtful that she showed by credible evidence that defendant’s dog bit her. On the uncontradieted evidence, both dogs were unmuzzled, but in our opinion this did not, in the circumstances of the case, constitute a violation by either party of the statute pleaded by plaintiff. (Public Health Law, § 25-a.) Defendant’s dog was on a leash and was held in restraint by his servant. While a leash was attached to plaintiff’s dog, he was running loose with it, entirely unrestrained. If he had been under restraint, there would have been no fight. Lazansky, P. J., Davis, Adel, Taylor and Close, JJ., concur.