
    Solomon, Resp’t, v. Miller, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed January 7, 1889.)
    
    Evidence—Sufficiency of—Appeal.
    In an action for damages for being bitten by a horse the plaintiff and another witness swore that after the injury defendant said to them: “I know that horse bites; I told them not to take him out without a muzzle.”' Defendant and another witness denied this and there was positive evidence that the horse had never been known to bite, even when teased, and that no muzzle had ever been used on him. Held, that a judgment, for plaintiff could not be sustained.
    Appeal from a judgment rendered in favor of plaintiff' by a district court and for damages for being bitten by a horse belonging to defendant.
    
      G. W. Gallinger, for app’lt; H. Joseph, for resp’t.
   Per Curiam.

—To prove that the horse was accustomed’ to bite mankind, the plaintiff and another witness swore that Miller, a defendant, said to them: “I know that horse bites; I have told them not to take him out without a muzzle.” That testimony, if true, would show that the horse was accustomed to bite,' and that the defendant well knew the fact; but we do not believe that it is true. It is most improbable that such an admission should have been made when the defendant knew that a claim for damages on account of the horse biting was preferred against, him. That the admission was made, is denied by the defendant, and by Shafer; and furthermore, there is positive and satisfactory evidence that the horse had never been known to bite, and that no muzzle had ever been used upon him. It was also proved that when the horse was feeding, he would not bite, even when teased.

This seems to be a proper case for the application of the rule laid down in MacNiffe v. Ludington (13 Abb. N. Cas.. 407).

Judgment reversed.  