22 Barb. 506 | N.Y. Sup. Ct. | 1856
1. If there is a disputed question of fact, upon which the case turned in the court below, or in relation to which there was evidence upon both sides, the county court did right to affirm the judgment, whatever may have been the opinion of that court, or may be our opinion as to the correctness of the conclusion of the justice. The county court, or this court, cannot reverse the judgment of a justice because it is against the weight of evidence. (Adsit v. Wilson, 7 How. 64. Kasson v. Mills, 8 id. 377. Bennett v. Scutt, 18 Barb. 347.) But if the judgment was entirely unsupported by evidence, so that it is really against law, the county court should reverse, and if it fails to do so, it is the duty of this court to correct the error and reverse the judgment of both courts.
“Tet dogs delight to bark and bite, For God hath made them so; let bears and lions growl and fight, For ’tis their nature to.”
The defense is not rested upon the principle of self-defense, or defense of the possession of the master of the victorious dog. ^ Had this defense been interposed, a serious and novel question would have arisen, as to the liability of the offending dog for excess of force, and whether he would be held to the same rules which are applied to human beings in like cases offending; whether he would be held strictly to the proof of the necessity and reasonableness of all the force exerted, under the plea that in defense3 of his carcase or the premises committed to his watch and care, “he did necessarily a little bite, scratch, wound, tear, devour and kill the plaintiff’s dog, doing no unnecessary damage to the body or hide of the said dog.”
Addressing myself to the question really made in the case, then, the first difficulty I meet with is the want of proof of ownership by the defendant of the offending dog. The plaintiff made a prima facie case, by proving an apparent possession of the dog, but the appearances were entirely explained by the witness Nowell, who testifies that the dog was not owned by the defendant, nor kept nor harbored by him, but was really a trespasser on the premises, being kept at the shop adjoining. Upon the question of ownership there is really no conflict of testimony.
2. Whatever may have been the character and habits of the dog, there is no evidence that he was the aggressor, or in the wrong, in this particular fight. The plaintiff’s dog may have provoked the quarrel and have caused the fight; and if so, the owner of the victor dog, whoever he may be, cannot be made responsible for the consequences.
3. There is no evidence that the dog alleged to belong to the defendant was a dangerous animal, or one unfit to be kept. The cases cited, in which dogs have attacked human beings,r
4. The evidence is slight that the dog died in consequence of this fight. 1 should infer, from the evidence, that he continued his annoying visitations until some one who did not own a white dog with black spots on his head, made use of a shot gun or “ Sharpe’s rifle,” or some other substitute, to abate the nuisance. But as this question is left in doubt by the evidence, the judgment of the justice is conclusive as to the cause of death. I can, however, see no just grounds for the judgment. It can only be supported upon the broad ground that when two dogs fight and one is killed, the owner can have satisfaction for his loss from the owner of the victorious dog; and I know of no such rule. (¡The owner of the dead dog would, I think, be very clearly entitled to the skin, although some, less liberal, "would be disposed to award it as a trophy to the victor, and this rule would ordinarily be a full equivalent for the loss; and with that,
The judgment of the county court, and of the justice, reversed.
Pratt, Bacon and W. F. Allen, Justices.]