30 N.Y.S. 622 | N.Y. Sup. Ct. | 1894
The action was to recover damages for injuries to the plaintiff resulting from an attack by dogs. The complaint alleged that the dogs were kept by the defendant; that they were of vicious character, as he well knew; and that they were suffered to go at large without being properly guarded, etc. These allegations were supported by the evidence. It was shown that the defendant was a householder of the city of Rochester, occupying, with his family, and for the purposes of his business, premises which belonged to his wife. He was a milkman, and he kept the cows, horses, and wagons used in his business in a barn on the same premises. He supported his own family, supplied his own table, and was in fact as well as in contemplation of law the head of his own household. He kept three dogs on the place, which were fed, as dogs usually are, from their master’s table; and they had the freedom of the premises, except that one of them, which seems to have been recognized as the vicious one of the three, was occasionally kept chained in the barn. All three of the dogs joined in the attack on the plaintiff, tearing her clothes, snapping at her hands, and frightening her badly. She was in a delicate condition at the time, and the evidence tends to show that she suffered from the nervous shock. The defendant’s answer is a negative .pregnant, which can hardly be said to put in issue any one allegation of the complaint. On the trial he was a witness in his own behalf, and contented himself with testifying that he did not own either of the dogs, and that he did not own the premises where he lived. The question of the title to the dogs is of little importance. That they were kept and harbored by the defendant is unquestioned, except as it is contended in his behalf that the fact of his wife’s title to the real property on which they lived makes her, of necessity, the keeper and harborer of the dogs. Of course, this contention cannot be maintained. A man may keep dogs, if he is permitted to, on premises which belong to his wife as well as on premises which belong to anybody else. We do not deem it necessary, under the facts of this case, to discuss very fully the effect of the married woman’s acts on the question of who keeps the family dog. That has been done in the case of Quilty v. Battie (opinion by Maynard, J.) 135 N. Y. 201, 32 N. E. 47, and we are quite assured that the conclusion which we reach in this case does no violence" to the principles declared in that case. There a judgment which had been recovered jointly against husband and wife was reversed as to the husband for the sufficient reason, as stated in the opinion, that “he had been made liable not on the ground that he was the owner of the dog, or that he co-operated with his wife in the commission of a wrong, but solely on the ground of his marital liability for the torts of his wife.”
So ordered.
