La Borie v. Habes , 52 Misc. 2d 437 ( 1967 )

C. Benn Forsyth, J.

The respondent has demanded a jury trial in this proceeding pursuant to section 116 of the Agriculture and Markets Law. It has been held that the respondent is not entitled to a jury trial under the provisions of the Agriculture and Markets Law (Rueffer v. Department of Agriculture & Markets, 164 Misc. 803).

Proceedings under section 116 have been held to be a special civil proceeding (Matter of Foote, 129 Misc. 2). However, it is the opinion of this court that, even as such, they do not fall within the preservation of a right to a jury trial, as is fully set forth in CPLR 4101.

The statute, section 116 of the Agriculture and Markets Law, specifically states that the Justice of the Peace 1 ‘ shall inquire into the complaint ” and “ If satisfied, from such inquiry, that the dog is a dangerous dog, such justice or magistrate shall order ’ ’. It is the opinion of this court that it was the intention of the Legislature that such inquiry should be made by the Justice of the Peace without a jury and that this in no way conflicts with any other provision of law.

It is therefore the order of this court that this matter be set down for a hearing on January 17, 1967, at 8:00 p.m. at the Webster Town Hall, said hearing to be held without a jury.