Brown v. Hoburger , 1868 N.Y. App. Div. LEXIS 100 ( 1868 )

By the Court, Johnson, J.

The jury, upon the evidence, found a verdict against the plaintiff. The only error which the plaintiff complains of, was the ruling of the court upon the trial, excluding the evidence offered of the opinion of a witness, as to the value of the dog killed by the defendant. In Dunlap v. Snyder, (17 Barb. 561,) it was held unanimously by the four judges that such evidence was incompetent, overruling the decision in Brill v. Flagler, (23 Wend. 354.) It was held in that case that the jury were the judges of the value of the animal, after hearing all the evidence touching his qualities. In Brill v. Flagler, thus overruled, the court held that the opinion of a witness as to the value of a dog was larely competent. That was the ease of a “ well broke setter dog.” The evidence was held admissible, on the ground that the question was put to witnesses supposed to be acquainted with the peculiar qualities of setter dogs, and who had some knowledge of their market value. Bogs, in general, as is well known, have no fixed"1 or general market value. If there is any particular breed or class of dogs which is generally or usually sold in market and have established some fixed, or general market value, I do not see why opinions of witnesses are not as competent to fix the value of such breed, or class, as that of any other marketable property. Opinions as to the value of property, to be competent, must relate to some standard or marketable value. Opinions as to value, founded upon the mere taste or fancy of the owner, or the witness, are not competent. And for this reason, opinions in regard to the value of dogs which have no standard or marketable value are necessarily fanciful, depending upon the fancy or predilection of the witness, and are not competent. In order to render opinions as to the value of a dog competent, it should first be shown that the dog in question is a marketable animal, either belonging to some peculiar breed, or possessing some peculiar qualities, which make him an animal usually vendible, at some proximately regular price. Hothing of the kind was shown here. It was shown that he was a trained farm dog, and it was offered to be shown that the witness, who was the plaintiff himself, was acquainted with the value of such dogs, and had seen them bought and sold. This fell far short of offering to prove that the dog was a marketable animal, or had any market value, which the witness was acquainted with. I am of the opinion, therefore, that the evidence was properly excluded.

[Monroe General Term, December 7, 1868.

But if it was not, the error did not in any degree prejudice the plaintiff, or affect his right of recovery. It was shown by the defendant, as the -case states, that he killed the dog while in the act of chasing and worrying" his sheep. This was a justifiable act, and the plaintiff could not have recovered in any view of the case. (1 R. S. 885, § 15.) Had the ruling been erroneous, therefore, wn should not grant a new trial. A new trial will never .be granted where it is apparent that the error did not, and could not, affect the rights of the complaining party.

A new trial must, therefore, be denied.

K D. Smith, Johnson and J. 0. Smith, Justices.]