
    Anna Bundschuh, Resp’t, v. Albert Mayer, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 17, 1894.)
    
    1. Animals—Dogs.
    That a wife owns the premises on which her husband lives with his family, does not alone make her liable as a harborer of his dogs.,
    2. Same.
    The ownership of such animals does not affect one’s liability as a harborer of them.
    Appeal from a judgment entered on a verdict of a plaintiff, and from an order denying a motion for a new trial on the minutes of the court.
    
      F. J. Hone, for app’lt; G. F. Miller, for resp’t.
   Dwight, P. J.

The action was to recover damages for injuries to the plaintiff resulting from an attack by dogs. The complaint alleged that the dogs were kept by the defendant; that they were of vicious character, as he well knew; and that they were suffered to go dt large without being properly guarded, etc! These allegations were supported by the evidence. It was shown that the defendant was a householder of the ^ity of Rochester, occupying, with his-family, and for the purposes of his business, premises which belonged to his wife. He was a milkman, and he kept the cows, horses, and wagons used in his business in a barn on the same premises. He supported his own family, supplied his own table, and was in fact as well- as in contemplation of law the head of his own household. He kept three dogs on the place, which were fed, as dogs usually are, from their master’s table ; and they had the freedom of the premises, except that one of them, which seems to have been recognized as the vicious one of the three, was occasionally kept chained in the barn. All three of the dogs joined in the attack on the plaintiff, tearing her clothes, snapping at her hands, and frightening her badly. She was in a delicate condition at the time, and the evidence tends to show that she suffered from the nervous shock. The defendant’s answer is a negative pregnant, which can hardly be said to put in issue any one allegation of the complaint. On the trial he was a witness in his own behalf,- and contented himself with testifying that he did not own either of the dogs, and that he did not own the premises where he lived. The question of the title to the dogs is of little importance. That they were kept and harbored by the defendant is unquestioned, except as it is contended in his behalf that the fact of his wife’s title to the real property on which they lived makes her, of necessity, the keeper and harborer of the dogs. Of course, this contention cannot be maintained. A man may keep dogs, if he is permitted to, on premises which belong to his wife as well as on premises which belong to anybody else. We do not deem it. necessary, under the facts of this case, to discuss very fully the effect of the married woman’s acts on the question of who keeps the family dog. That has been done in the case of Quilty v. Battie (opinion by Maynard, J.), 135 N. Y. 201; 48 St. Rep. 413, and we are quite assured that the conclusion which we reach in this case does no violence to the principles declared in that case. There a judgment which had been recovered jointly against husband and wife was reversed as to the husband for the-sufficient reason, as stated in the opinion, that “he had been made liable not on the ground that he was the owner of the dog, or’that he co-operated with his wife in the commission of a wrong, but solely on the ground of his marital liability for the torts of his wife.”

There are several exceptions to particulars of the charge and refusals to charge as requested in this case, none of which seem to us to have been to the prejudice of the defendant. The cardinal facts which determine his liability are that he was the head of the household; that as such he occupied the premises; that he supported his family, and with them the dogs which were.kept on the place. They were, as to the public, his dogs, and they were unquestionably kept and harbored by him. The judgment and order appealed from should be affirmed.

All concur. So ordered. •  