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Stern v. Hoffman Brewing Co.

56 N.Y.S. 188 Court N.Y. App. Term Decision date 1899-02-24 English

Delivered by MacLEAtf, J.

Contents

Majority

p. 188
STERN v. HOFFMAN BREWING CO.
(Supreme Court, Appellate Term.
February 24, 1899.)

Headnote

Injury by Horse—Liability op Owner—Scienter.
The owner of a horse, who permitted it to go at large and unattended on a sidewalk, is liable for injuries caused by its biting a pedestrian thereon, though he had no knowledge of its vicious propensities.
Appeal from municipal court, borough of Manhattan, Fifth district.
Action by Louis Stern against the Hoffman Brewing Company. Judgment for defendant, and plaintiff appeals.
Reversed.
Argued before FREEDMAH, P. J., and MacLEAA and LEVEN-TRITT, JJ.
Abraham H. Sarasohn, for appellant.
Ashbel P. Fitch, for respondent.

The complaint was dismissed on the ground that the alleged damage was caused by the malicious conduct of -a domestic animal, and the plaintiff failed, to establish previous knowledge of vicious inclination. According to the uncontradicted tes-' timony of the plaintiff, the horses of the defendant were upon a sider walk, at large and unattended, and, in passing, one of them jumped and bit a piece out of his coat. They were admittedly where they had no right to be, and where, presumably, they would not have been, if attended. Under such circumstances, failure to prove scienter will not relieve the owner of responsibility; “the vice of the animal being an essential fact only when, but for it, the conduct of the owner would be free-from fault.” Dickson v. McCoy, 39 N. Y. 400 , 401.

Judgment reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.

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