Buchanan v. Stout

Jenks, J.:

Plaintiff’s cat was killed in tbe doorway of tbe vestibule of plaintiff’s bouse by tbe dogs of tbe defendant, Defendant admitted.tbat be bad taken tlie-dogs into .tbe street with him, and that when he discovered that they had not followed him home he followed them up to find them worrying the cat. The defendant seems to have done all that a humane person could do under tbe circumstances to save animal life. But -the undisputed evidence is that be took bis dogs into, the street unmuzzled and unleashed, and. that -the degs caught siglit of the cat and pursued it even into plaintiff’s -premises.

The judgment against -the defendant for the value of the cat should be affirmed'. The defendant had taken his dogs into the public street of the city of. New York, unmuzzled and not led, against a- city ordinance that was read in evidence, and, therefore, there was evidence of his negligence shown by bis violation thereof-. And moreover, the dogs, thus let loose in the public street, had *205 chased the cat into the premises of the plaintiff, where they killed it. Under such conditions proof of scienter was not essential. (Dickson v. McCoy, 39 N. Y. 400 ; Bowyer v. Burlew, 3 T. & C. 362, Gilbert, J.) The dogs were unlawfully in the place where the injury was done, and the liability arises from that circumstance, (Decker v. Gammon, 44 Maine, 322; Van Leuven v. Lyke, 1 N. Y. 515 .) The judgment for plaintiff on the first trial was reversed and a new trial was ordered, with costs to abide' the event. * This disposition was authorized by the Municipal Court Act (Laws of 1902, chap. 580, § 345). When plaintiff prevailed upon the new trial she was entitled to tax the costs of the appeal. (Davis v. Reflex Camera Co., 114 App. Div. 814 ), and those costs were properly the sum of thirty dollars.

The judgment is, therefore, affirmed, with costs. ■

Present —Woodward,-Jenks, Burr, Thomas and Carr, JJ.

Judgment of the Municipal Court unanimously affirmed, with costs.

See 123 App. Div. 648 .— [Rep.