Paine v. Bergh

1 N.Y. City Ct. Rep. 160

• Court: New York Marine Court
• Decided: March 15, 1874
• Status: Published

Opinion

“ The case of Ira O. Paine against Henry Bergh, in which the former claimed $1,000 damages, as compensation for losses alleged to have been sustained by him, by reason of the action of the society in breaking up and preventing a grand handicap jiigeon-shooting tournament at Fleetwood Park, was tried in 'the Marine Court on March 23, 1874, before Judge McAdam., After hearing the evidence on both sides, his Honor promptly gave the following admirable decision :

“ ‘ That the assemblage at Fleetwood Park on the occasion in question was clearly illegal,

* and the shooting of the pigeons was a needless mutilating and killing, within the statute.* I charge you, gentlemen of the jury, to find a verdict for the defendant.’

‘‘ Since this decision the pigeon-shooters have become somewhat demoralized, and althougn they occasionally meet for the purpose of mutilating and killing their little victims, they take care to get far enough away, where the local authorities are inimical to the law and the officers of the society. During the year, several contemplated matches at Jerome, Fleetwood and Deer-foot Parks have been interrupted, and the crowds' dispersed. From advices received from England it appears the cruel sport is generally dying out there, and noblemen and gentlemen, ashamed of engaging in them under their proper names and titles, figure as Jones, Brown or Robinson. A gentleman in this city—one who has shot in many a public and private match—remarked recently that public sentiment was against it, and he and many of his friends had entirely given it up.”

Tbe person who shot the largest number of pigeons was to have a silver cup. This gaming feature made the assemblage an illegal one.

See Campbell v. Richardson, 10 Johns. 406, as to prize shooting. Governors of Alms House •v. American Art Union, 7 U. T. 338, as to prize exhibitions, and Hull -o. Ruggles, 56 Id. 434, as to packages of prize candies.

Independently of this it was a nuisance to the neighbors (Rex v. Moore, 3 Barn. & Ad. 184; 3 Arclib. Or. Pr. & P. 993).

In England, under a similar statute, the court held that the cruelty intended to be prevented by the statute is as great when practiced upon a pigeon, turkey, or other domestic bird, as upon a domestic quadruped (Budge v. Parsons, 3 Best & 8. 382; S. C-, 7 Law Times N. 8. 784; S. C., 9 Jurists. 8. 796; S.C., 11 Weekly JR. 424).

The late Hugh Maxwell, when district attorney, said: “The Almighty has given man dominion over the fowls of the air, the beasts of the field, and the fishes of the sea. But he must take care that his dominion be not abused: that, like every other gift of the Deity, it might be and often was abused. In such a case the municipal laws of the country had stepped in to the aid of those of nature and religion, and would punish him for an infraction of their rules” (People y. Stakes, 1 Wheeler' Or. Gas. 111).

To treat a dumb beast with cruelty is a misdemeanor at common law (Isaac Ross Case, 3 Gity Sail Recorder, 191).

As to the right of Mr. Bergh’s officers to arrest without warrant, see Christie •». Bergh, 15 ARb. Pr. N. 8. 51.

Injuries by animals.—In order to recover for injuries done by animals mansuetas naturas, such as oxen, cows, or the like, scienter must be shown, but it is otherwise of injuries done by animals fern natwas, such as lions, tigers and the like (Van Leuven •o. Lyke, 1 S. Y. 516), or by deer (Congress & Empire Spring Co. y. Edgar, 18 Am. 613).

The statute of 1875.—In order to avoid-the effect of this decision, which was affirmed on appeal, the legislature were induced to" pass the following act, which will be found, in the Laws of 1875 (c. 107): “None of the provisions of law heretofore enacted for the prevention of cruelty to animals within this State, shall be construed to prohibit or interfere with the shooting, by members of sportsmen’s clubs or incorporated societies, of pigeons; provided that, in each case, as soon as they can be captured or taken, after being shot, such pigeons, if living, shall immediately be killed.”