Quilty v. Battie — 15 N.Y.S. 765

Majority

p. 765

Quilty v. Battie et al.

(Supreme Court, General Term, Third Department.

September 25, 1891.)

Headnote

1. Husband and Wife—Vicious Doe Kept by Husband.

Where a married woman, who lives with her husband on her own premises, and contributes to the household expenses, harbors her husband’s dog with knowledge of its viciousness, and allows it to escape on land other than her own, where it bites a person, she is liable for the injury.

2. Same—Action against Wife—Joindek of Husband.

For a wife’s personal tort the husband is properly joined as defendant.

Appeal from circuit court, Washington county.

Action by Josie Quilty, an infant, etc., against Bebecca B. Battie and Joseph M. Battie to recover damages for the bite of a dog. There was judgment for plaintiff, and defendants appeal.

Argued before Learned, P. J., and Landon and Mayham, JJ.

L. H. Northup, for appellants. C. C. Van Kirk, for respondent.

Defendants were husband and wife, living together upon premises owned by the wife, both contributing to the household expenses. The husband bought a dog, and brought it upon the premises. The jury found, upon evidence justifying the finding, that the dog was vicious, and known by the wife to be so, and that she harbored it upon the premises with knowledge of its vicious propensities. The dog, not being confined, went upon neighboring premises, and there bit the plaintiff. Harboring this dog was the personal act of the wife; allowing it to escape, knowing that its vicious propensities might cause injury to others, was her personal tort, and she was liable for the resulting injury, Genenz v. De Forest, 2 N. Y. Supp. 152 ; Keenan v. Manufacturing Co., 46 Hun, 544 . Being the personal tort of the wife, her husband was properly joined as defendant. Fitzgerald v. Quann, 109 N. Y. 441 , 17 N. E. Rep. 354 . The judgment should be affirmed, with costs. All concur.

Cases cited

Fitzgerald v. Quann 109 N. Y. 441 N.Y. 1888-06-05 p. 765