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Soronen v. Von Pustau

112 A.D. 437 Court Second Department, Decision date 1906-04-20 English

Delivered by Rich, J.:

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p. 437
Eina Soronen, Appellant, v. William Von Pustau, Respondent.
Second Department,
April 20, 1906.

Headnote

ITegligence — injury from bite of vicious dog—scienter of keeper competent against owner.
In an action to recover for injury caused by the bite of a vicious dog, the liability of the owner rests upon his knowledge of its vicious nature, and it is error to exclude evidence showing that the owner’s brother who had charge of and cared for the dog had known of its vicious character prior to the injury, since the owner would be charged therewith.
Appeal by the plaintiff, Eina Soronen, from a judgment of the Municipal Court of the city of Hew York, bbrough of Brooklyn, in .favor of the defendant, rendered on the 2d day of June, 1905.
Edo E. Mercelis, for the appellant.
Charles Oakes, for the respondent.

This is an appeal from a judgment dismissing the complaint at the close of the plaintiff’s case. The action was brought to recover damages alleged to- have been sustained by plaintiff as the result of

p. 438
her .having been bitten by a -vicious and dangerous dog, owned by the defendant, while she was in the employ of defendant’s mother, as a servant.

Upon the trial the plaintiff endeavored to prove that information was given defendant’s brother' (to whom the care and custody of the dbg was intrusted) of its dangerous and vicious character and of statements- made by him to third' parties tending to establish that he had such knowledge. The trial court sustained objections made to . the questions asked for this purpose and excluded the evidence; to these rulings the plaintiff duly excepted.

The defendant’s liability rested upon his knowledge of th,e vicious character of his dog. If the brother had knowledge* of the vicious. character of the dog prior to the injury, the defendant was charged with that knowledge, although it may not have been communicated to him. (Brice v. Bauer, 108 N. Y. 428 ; Niland v. Geer, 46 App. Div. 194 .) Evidence of such knowledge was, therefore, competent, and its exclusion error for which the judgment must he reversed.

Judgment reversed and new trial ordered, costs to abide the event.

Woodward, Jenks and Hooker, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.

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