
    (89 Hun, 42.)
    SAHR v. SCHOLLE.
    (Supreme Court, General Term, Second Department.
    July 26, 1895.)
    1. Animals—Killing by Humane Society—Liability.
    Pen. Code, § 656, declaring that an officer of a society for prevention of cruelty to animals may kill an animal found abandoned, appearing, in the judgment of two reputable citizens called by him to view the animal, to be past recovery for any useful purpose, leaves him liable to the owner, unless he proves that it was, past recovery for any useful purpose, the determination of the two citizens, without notice to the owner, not being conclusive on him.
    2. Same—Evidence.
    Recovery by the owner against such an officer for killing a horse is not justified, on the mere testimony of plaintiff that he cleaned the horse in the morning of the day he was killed, and that he was then all right, and had not been used for two days; that he did not see him again till after he was shot, and that he, then discovered no wound on him except a small scar over one eye; and that he procured other persons to examine him (hone of whom, however, were called as witnesses, nor was failure to call them excused),—defendant having, on the other hand, produced six apparently disinterested witnesses, who testified that the horse was in an emaciated condition, having bruises about the head and body, which were raw and bloody, and that he was lying among a lot of stones, and was unable to get up.
    Appeal from Queens county court.
    Action by John Sahr against Theodore E. Scholle. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Reversed.
    Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.
    Jay S. J ones (George F. Elliott, of counsel), for appellant.
    Clarence Edwards, for respondent.
   BROWN, P. J.

This action was brought to recover the value of a horse which was killed by the defendant. In justification of his act, the defendant proved that he was an officer of the American Society for the Prevention of Cruelty to Animals, and alleged that the horse was found abandoned, and, in the judgment of two reputable citizens called by him to view the animal in his presence, appeared to be injured past recovery for any useful purpose. Pen. Code, § 656.

It was incumbent upon the defendant, in order to establish his defense, to prove the fact that the horse was injured past recovery for any useful purpose. The determination of such fact by two reputable citizens called to examine the horse, as required by the statute, was not conclusive upon its owner. Before there could be such a conclusive determination as would result in depriving the owner of his property, he was entitled to a hearing. In that way only can acts of the legislature conferring upon public officers the right to destroy private property be harmonized with the constitutional provision securing to every person due process of law before his property can be interfered with. A person whose property has been destroyed by a public officer, acting pursuant to a statutory authority, without notice to the owner, may always, therefore, have his common-law action for damages; and, if he can prove that the fact which authorizes the officer to act did not exist, he is entitled to a judgment. This subject has recently been examined in the court of appeals, and the law applicable to the case stated in People v. Board of Health of City of Yonkers, 140 N. Y. 1, 35 N. E. 320. The court properly charged the jury upon the subject, and the exception thereto was not well taken. Upon the facts, however, there should be a new trial. The horse was shot by the defendant on June 22,1893, about 4 o’clock in the afternoon, in a vacant lot, some distance from the highway and from the plaintiff’s stable. The plaintiff testified that he cleaned the horse in the morning, and that he was then all right, and had not been used for two days; he did not see him again until after he had been shot, and he then discovered no wound upon him, except a small scar over the left eye; that he procured other people to examine him, among them Dr. Brooks, a veterinary surgeon. He, however, called none of those witnesses, and gave no reasonable excuse for failing to produce them at the trial., On the other hand, the defendant called six witnesses, all of whom appeared to -be wholly disinterested, and who testified that the horse was in an emaciated condition, having bruises about the head and body, which were raw and bloody; that he was lying down among a lot of stones, and was unable to get upon his feet. The evidence upon the part of the defendant left, we think, no room to doubt but that the horse was past recovery, and was in such a condition as to justify the defendant in killing him.

For these reasons, the judgment and order should be reversed, and a new trial granted, with costs to abide the event. All concur.  