Genenz v. De Forest — 17 N.Y. St. Rep. 523

Majority

p. 523

Fritz Genenz, an Infant, by Guardian, etc., Appl’t, v. Mary T. De Forest, Resp’t.

(Supreme Court, General Term,, Third Department,

Filed July 3, 1888.)

Headnote

1. Maiuued -women—When husband must be joined as defendant— Pleading—Answeb.

In an action for injuries, caused by plaintiff being bitten by a dog, which did not belong to defendant, but which was on the premises occupied by her, and which was harbored by her, the defendant alleged in her answer that she was a married woman, and proved it on the trial. Held, that the defendant should have been sued with her husband; that the objection was sufficiently stated in the answer to allow defendant to avail herself of it upon the trial.

% Same.

The fact that the defendant had been appointed committee for her husband did not take the case out of rule as settled in Fitwerald v. Quann (16 N. Y State Rep., 395).

p. 524

Appeal by the plaintiff from a judgment of non-suit,, granted by Mr. Justice Alton B. Parker, at the Rensselaer circuit. The suit was brought by the plaintiff to recover damages for injuries received by being bitten by a dog kept by the defendant. The defendant was appointed the committee of her husband, a lunatic, in December, 1869, and has ever since then occupied and managed the large mansion and farm attached, at Re Freestville.

The dog in question had been at defendant’s place for more than a month before the biting, which occurred November 13, 1886. The dog was fed at the house, and was kept chained at times in the wood-house and at other times under a tree, and at different places on this' farm. The mother of plaintiff, Mrs. Genenz, did the washing for the defendant. She went to the defendant’s house on that, business.

The other facts are stated in the opinion.

A. J. Parker, for app’lt; E. L. Fursman, for resp’t.

The defendant alleged in her answer that she was a married woman. She proved this on the trial.

In the case of Fitzgerald v. Quann (16 N. Y. State Rep.,, 395), lately decided by the court of appeals, affirming the same case in 33 Hun, 652 , the court say that “except in case affecting her separate property a married woman should be sued with her husband.” That was an action for slander. This is an action for injuries caused by plaintiff’s being bitten by a dog, which did not belong to defendant, but which the proof showed to have been on the premises occupied by her and which the plaintiff claimed to have been harbored by her.

The dog which bit in this case was no more the woman’s; separate estate than the tongue which uttered the slander-in the other. We think that case is decisive of this.

If that case is not quite in harmony with Rowe v. Smith ( 45 N. Y., 230 ) the latter decision should be followed.

We think the objection was sufficiently stated in the-answer to allow defendant to avail herself of it upon the trial.

The plaintiff urges that the fact that a committee has been appointed for the husband, and that this defendant is, such committee, takes this case out of the rule as now settled by the court of appeals. We think not. It is remarked in the opinion in that case that it is not of very-great importance how the question is decided. And it is, not worth while to begin to make exceptions to a plain rule.

We may say, further, that there is little, if any, evidence of viciousness in the dog prior to the accident. Two girls were passing along the ‘highway. The dog ran out and barked and ran towards them but did nothing. They were

p. 525

frightened. So they might have been at a mouse; but it would not follow that the mouse was vicious.

The dog grabbed a coat hanging down from a man’s shoulder. The dog was tied in a wood-shed and jumped for Mrs. Grenenz’s shoulder when she went m.

Reynolds, who worked for the defendant and who brought “the dog to defendant’s house, kept him chained. This is substantially all the proof of viciousness. And it shows little but the playfulness of a puppy, which the animal was. There was hardly the scintilla of evidence spoken of in Dwight v. Germania Life Ins. Co. ( 103 N. Y., 358 ; 3 N. Y. State Rep., 115).

Judgment affirmed, with costs.

Landón and Ingalls, JJ., concur.