People ex rel. Renshaw v. Gillespie

Landon, J.:

While it is now settled law that a dog is property, it is still true that some dogs, because of their viciousness, are nuisances. The statute in question seeks the summary abatement of such nuisances. It was the politiy of the law in colonial times, and has been ever since, to make a summary disposition of vicious dogs. (N. Y. Colonial Laws 1732,'Edition of the Statutory. Revisers, Vol. 2,735; Laws 1764, id. Yol. 4, 830; Laws 1768, id. 1070.) These colonial laws were continued in force by the State Constitution. (Art. 1, § 16.) Since the colony became á State numerous statutes for the like purpose have been enacted. (See compilation of these statutes in 1 Birdseye’s R. S. 762.) The statute here under review is in furtherance of the same purpose. (See Fox v. Mohawk & Hudson R. Humane Society [ante, p. 26] ; S. C., 20 Misc. Rep. 461 , upon this point.) .

*93 The relator contends that since it is now the settled law, contrary to what was formerly held, that a dog is property (Mullaly v. People, 86 N. Y. 365 ) the statute must be construed accordingly, and that the-order of the justice directing that the relator kill his dog immediately, having been made without notice to him, or giving him any opportunity to be heard, deprives him of his property without due process of law and is, therefore, void. This, as we have shown in Fox v. Mohawk & Hudson R. Humane Society (supra), would no doubt be so if the statute or the order authorized any officer or person other than the owner or possessor of the dog to kill it, but it directs such owner or possessor to kill it, and prescribes a money penalty for his disobedience. The relator has not killed his dog, and as yet refuses to do so. The statute imposes the money penalty; the justice did not impose it. By section 127 of the County Law, added by chapter 680, General Laws 1896, the penalties imposed are to be collected by the supervisor of the town. The supervisor' must do this by action against the relator. (Code Civ. Proc. § 1926.)

The order of the justice, if properly made, fixes the right to recover in the action, but whether properly made, that is, whether the facts - justified the order, could-be litigated in the action itself. In such action the relator would have full opportunity to be heard and to contest the truth of the complaint upon which the justice based his order, and thus his right to due process of law is secured to him. (Health Dept. v. Rector, 145 N. Y. 32, 48 .)

People ex rel. Shand v. Tighe ( 9 Misc. Rep. 607 ) is cited. That case arose under an ordinance of the city of Brooklyn, and the police justice who had made an order like the one here under consideration, caused the relator to be brought before him upon a warrant, to enforce the payment of the penalty. We assume that the relator, when brought before the police justice, had no opportunity to contest the truth of the original complaint, and in that view the case was correctly decided, and thus is clearly distinguishable from the one before us.

As the order of the justice of the peace was not the final determination of the rights of the relator, the writ of certiorari should be dismissed. (Code Civ. Proc. § 2122.)

All concurred.

Writ of certiorari is dismissed, with costs.

*94 CASES DETERMINED IN THE SECOND DEPARTMENT IN THE APPELLATE DIVISION, January, 1898.