Jennings v. D. G. Burton Co. , 73 Hun 545 ( 1893 )

PRATT, J.

The defendant appeals from a judgment entered upon the verdict of a jury, and from an order denying a motion for a new trial. The action was brought to recover damages sustained by plaintiff, an employe of the defendant, from the bite of a dog, alleged to have been kept by the defendant. The evidence shows that at the time of the injury one James D. Burton occupied a stable which the defendant had leased to him on February 16, 1892; that said stable was situated some 300 feet distant from the engine room where plaintiff was employed at the time of the injury; and that said Burton owned and kept a dog in said stable, which attacked and bit the plaintiff on the morning of February 26, 1892. It was further shown that the defendant was incorporated on February 1, 1892, and became the owner of said stable and the premises where plaintiff was employed on February 16, 1892. There is no evidence in the case, so far as we have been able to discover, that the defendant owned the dog, or had it in possession; on'the contrary, it was clearly proven that the dog belonged to one James D. Burton, and was kept by him at his stable. Nor was there any evidence to hold the defendant as a harborer of the dog for the space of 20 days previous to the injury, under 1 Rev. St. p. 706, § 20. That could not have been found, for the reason that the defendant did not become the owner of the premises until February 16,1892,—only 10 days before the injury. On this state of facts, even conceding that the dog was a vicious one, we do not see how plaintiff can recover in this action. But we do not find sufficient evidence that the dog really was a vicious one. He had never before bitten any one, or, so far as we can find in the evidence, done anything from which the defendant, even if it owned the dog, could be presumed to have notice that the dog was a vicious one. He was chained ■in Burton’s stable, and at times had growled and barked at persons passing near him. Such actions did not make the dog a vicious one. But it is unnecessary to discuss this branch of the case. It is sufficient for the purposes of this appeal that it was shown on the trial that the defendant was not the owner of the dog, and had not harbored him for the 20 days required by the statute to make the defendant liable for any injury the dog might do. The judgment and order should be reversed, and a new trial granted, with costs to abide the event.