Quilty v. Battie — 39 N.Y. St. Rep. 932

Majority

p. 932

Josie Quilty, an Infant, Resp’t, v. Rebecca B. Battie and Joseph M. Battie, App’lts.

(Supreme Court, General Term, Third Department,

Filed September 25, 1891.)

Headnote

Animals—Husband and wipe—Parties.

Defendants were husband and wife, living together. _ The husband bought a dog and brought it on their premises, and the wife, knowing it to be vicious, harbored it on the .premises unconfined. Held, that harbor

p. 933

ing the dog and allowing it to escape, knowing its vicious propensities, was the personal act and tort of the wife; that she was liable for the resulting injury, and her husband was properly joined as a party to an action therefor.

Appeal from a judgment- entered upon a verdict for the plaintiff upon the trial at the Washington circuit .

L. H. Northup, for app'lts; C. C. Van Kirk, for resp’t.

—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, 49 Hun, 364 ; 17 N. Y. State Rep., 523 ; Keenan v. Gutta Percha Mfg. Co., 46 Hun, 544 ; 12 N. Y. State Rep., 617. Being the personal tort of the wife, her husband was properly joined as defendant Fitzgerald v. Quann, 109 N. Y., 441 ; 16 N. Y. State Rep., 395.

The judgment should be affirmed, with costs.

Learned, P. J., and Maytiam, J., concur.