107 N.Y.S. 725 | N.Y. App. Div. | 1907
The plaintiffs judgment was for damages by the bite of the defendant’s dog. It was reversed on the grounds that a jury trial was refused and that it was not shown that the defendant had knowledge of the viciousness of. the dog. The defendant demanded a trial by-jury at the joining of issue, but did not deposit the jurors’ and constable’s fees in advance, as directed to do by the justice and required by law. This was á waiver of a jury trial, and it was the duty of the justice to proceed with the trial without a jury on the adjourned day, as he did (Code Civ. Pro. § 2990). There was. no evidence of any direct notice to the defendant of the dog having attacked any one before, but the evidence showed that the dog had habitually run out of the yard where the defendant lived with his parents and angrily attacked people in the street, afoot, on bicycles and in wagons for several months, though without getting hold of them. This was am pie to imply knowledge to the defendant. It is permissible to find that he knew'what was so notorious.
The judgment of the County Court should be reversed and that of the Justice’s Court affirmed.
Woodward,. Jenks, Eich and Miller,. JJ., concurred. ,
Judgment of the County Court of Westchester county reversed, and that of the Justice’s Court affirmed, with costs.