Fucelli v. Rice

260 A.D. 935, 23 N.Y.S.2d 248, 1940 N.Y. App. Div. LEXIS 5532

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 12, 1940
• Status: Published

Opinion

Proceeding in action brought to restrain and prevent the destruction of plaintiff’s dog. Order denying appellant’s application for an order restraining and preventing the destruction of appellant’s dog by the respondent affirmed, without costs. The respondent commissioner, acting pursuant to article 2, section 10, subdivision 4, of the Sanitary Code of the City of New York, determined in effect that the dog was “ vicious to such an extent as to be unsafe to be at large,” in that it had “ bitten * * * various persons on three (3) separate occasions, * * * without provocation, real or imaginary,” and directed its destruction. Plaintiff is not entitled to a judicial review of the commissioner’s action in directing the destruction of the dog, as the commissioner’s acts in this respect were not of a judicial character. (Matter of Browne v. Rice, 259 App. Div. 847; appeal dismissed, 283 N. Y. 684.) Further, if it be assumed that such judicial review is in order, the evidence before the respondent commissioner, in our opinion, warranted his action in directing the destruction of the dog. Lazansky, P. J., Hagarty, Carswell, Johnston and Taylor, JJ., concur.