
    Thomas Finley, Appellant, v. Michael Conlan, Respondent.
    Second Department,
    July 25, 1912.
    _ Master and servant — negligence — injury from kick of horse — complaint, when sufficient. .
    If a complaint states a cause of action for negligence either at common law or under the statute it is error to dismiss it.
    A complaint which alleges that defendant, knowing of its condition, furnished to plaintiff for use in his work a horse which was dangerous, unsafe and unfit to be used or driven by reason of a large sore upon its breast; that the collar of the harness rested upon, rubbed and chafed this sore spot, making the horse restless, nervous, vicious and liable to kick, states a common-láw action for negligence.
    Appeal by the plaintiff, Thomas Finley, from a judgment of the County Court of. Westchester county, entered in the office of the clerk of said court on the 5th day of December, 1911, upon the dismissal of the complaint. upon the pleadings at the opening of a trial before the court and a -jury.
    
      
      Eben H. P. Squire, for the appellant.
    
      Humphrey J. Lynch, for the respondent.
   Burr, J.:

Plaintiff, while in defendant’s employ, was injured through being kicked by a horse belonging to defendant. When the case was called for, trial a motion was made to dismiss the complaint upon the ground that it did not state facts sufficient to constitute a cause of action. The motion was granted, and plaintiff appeals from the. judgment.

The complaint alleges that defendant, knowing of its condition, furnished to plaintiff for use in his work a horse which was dangerous, unsafe and unfit to be used or driven by reason of a large sore upon its breast, which had been there for upwards of three weeks, and which was in a lacerated and raw condition; that the collar of the harness rested upon and rubbed and chafed this sore spot, causing the horse great pain and suffering and making it restless, nervous, vicious and liable to kick. The complaint also alleges the service of a notice under those sections of the Labor Law relating to employers’ liability (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], § 200 et seq., as amd. by Laws of 1910, chap. 352). Whether a horse furnished to be used in connection with a wagon, both being employed in carrying on the master’s work, is included in the term plant ” as used in the amended act, we need not now determine. The case of McGovern v. Fitzpatrick (148 App. Div. 34), relied upon by the respondent, is not in point, for there the cause of action arose before the adoption of the amendment referred to. If the complaint stated a cause of action either at common law or under the statute it was error to dismiss the same. (Mulligan v. Erie R. R. Co., 99 App. Div. 499; Acardo v. N. Y. Contracting & Trucking Co., 116 id. 193; Uss v. Crane Co., 138 id. 256.) If this complaint does state or attempt to state two independent causes of action, one at common law and the other under the statute, and it was necessary to separately state and number these (Uss v. Crane Co., supra ; Acardo v. N. Y. Contracting & Trucking Co., supra), no motion was made for that purpose. We think that the complaint did state a cause of action, at least at common law. Respondent contends that to recover for injuries resulting from the kick of a vicious horse it is necessary to allege and prove its vicious nature, and that it had manifested a tendency to kick, and that such tendency was known to defendant. (McGovern v. Fitzpatrick, supra; McHugh v. Mayor, 31 App. Div. 299.) But the gravamen of this action is not the viciousness, of the horse, but the negligence of plaintiff’s master in furnishing him with a horse which, under the conditions here disclosed, was unsafe for use. If in the exercise of due care and foresight it was to be reasonably anticipated that a horse might kick if one attempted to drive it when the harness pressed upon and irritated a sore upon 'his breast, the existence of which was known to defendant, and if under such circumstances defendant required plaintiff to make use of the horse, then he might be found to he negligent. (Karcher v. Fiss, Doerr & Carroll Horse Co., 127 App. Div. 203.)

The judgment of the County Court of Westchester county should be reversed and a new trial ordered, costs to abide the event.

Hirschberg, Thomas, Woodward and Rich, JJ., concurred.

Judgment of the County Court of Westchester county reversed ■and new trial ordered, costs to abide the event.  