Fettman v. Hencken & Willenbrock Co.

91 N.Y.S. 773

Opinion

MacEEAN, J.

In this action to recover for the bite of a dog the trial justice charged the jury, over the exception of the defendant, that: “If you believe the dog did bite this witness Greenspan and the boy Friedman, and that the defendant did or could or should have known of these occurrences, and continued to harbor the animal, then the law implies that the defendant did know of its viciousness, and it will be held liable for continuing to harbor the animal.” This, in effect, based the liability of the defendant upon either actual or constructive notice of vicious propensity, and was elsewhere in the charge expressly so stated. This was error, for “the doctrine of constructive notice has not been extended to actions of this description” (Laherty v. Hogan, 1 N. Y. St. Rep. 84, 85), particularly in the absence of proof that the animal was of a savage and ferocious nature.

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