Maxwell v. Palmerton

New York Supreme Court

Maxwell v. Palmerton

21 Wend. 407

CourtNew York Supreme Court

DecidedJuly 15, 1839

StatusPublished

Cited by11 cases

This text of 21 Wend. 407 (Maxwell v. Palmerton) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Maxwell v. Palmerton, 21 Wend. 407 (N.Y. Super. Ct. 1839).

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Opinion

By the Court,

Nelson, O. J.

I doubt if it be necessary in this and the like cases to prove a scienter upon the owner. If the dog be in fact ferocious, at large, and a terror to the neighborhood, the public should be justified in dispatching him at once. It seems to be settled that such proof is not necessary where a dog is in the habit of chasing conies in a warren, or deer in a park, and that he may be killed for the protection of those animals. How much more proper is it, that this should be the rule, and most singular would it be were it otherwise, when the persons and lives of rational beings are in danger. Cro. Jac. 45. 1 Saund. 84. 1 Campb. 41, n. 13 Johns. R. 312. 17 Wendell, 496. Were it necessary, I think the jury were warranted from the proof in this case in finding a scienter; at all events, though we might differ with them upon that question, such difference of opinion would afford no ground for reversing the judgment.

Perhaps the opinions of the witnesses that the dog was a dangerous animal, ought not in strictness to have been received ; but the witnesses gave the grounds of their opinions, and they could not have materially varied the case. The facts were stated which had come under their observation, from which they considered him dangerous. It would be distrusting the intelligence of the jury too much to believe that the opinions of the witnesses could have added any thing to the effect of the facts in the particular case.

Judgment affirmed.

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By the Court,

Nelson, O. J.

I doubt if it be necessary in this and the like cases to prove a scienter upon the owner. If the dog be in fact ferocious, at large, and a terror to the neighborhood, the public should be justified in dispatching him at once. It seems to be settled that such proof is not necessary where a dog is in the habit of chasing conies in a warren, or deer in a park, and that he may be killed for the protection of those animals. How much more proper is it, that this should be the rule, and most singular would it be were it otherwise, when the persons and lives of rational beings are in danger. Cro. Jac. 45. 1 Saund. 84. 1 Campb. 41, n. 13 Johns. R. 312. 17 Wendell, 496. Were it necessary, I think the jury were warranted from the proof in this case in finding a scienter; at all events, though we might differ with them upon that question, such difference of opinion would afford no ground for reversing the judgment.

Perhaps the opinions of the witnesses that the dog was a dangerous animal, ought not in strictness to have been received ; but the witnesses gave the grounds of their opinions, and they could not have materially varied the case. The facts were stated which had come under their observation, from which they considered him dangerous. It would be distrusting the intelligence of the jury too much to believe that the opinions of the witnesses could have added any thing to the effect of the facts in the particular case.

Judgment affirmed.

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21 Wend. 407, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maxwell-v-palmerton-nysupct-1839.

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