
    Beatrice Blyn, Appellant, v. William G. Foster & Company, Respondent.
    (Supreme Court, Appellate Term, First Department,
    May, 1915.)’
    Negligence — when evidence of ownership presumed — pleading—election of remedies — when exclusion of evidence reversible error.
    Plaintiff while walking on the sidewalk was bitten by defendant’s horse, which drawn up at the curb was swinging its head to and fro waiting to be fed. The complaint alleged that the horse was of a vicious disposition to the knowledge of defendant and was left unattended at the time of the accident and with the wheels of the vehicle unfastened in violation of traffic rules. Held, that the complaint did not set forth two causes of action, but one for negligence only.
    While an action based on the keeping of a vicious animal is not strictly in negligence, nevertheless the liability of the owner is “in a certain sense based on negligence” which after proof of ownership and scienter is presumed.
    Where the allegation of the complaint was “ that solely by reason of the negligence and improper conduct of the defendant * * * as heretofore alleged, the plaintiff was injured,” neither the theory nor the fact upon which recovery might be based involved any inconsistent position so as to compel an election, certainly not before the evidence was all in.
    
      Where the traffic rule provided that no horse should be left unattended in any street or highway unless securely fastened, or unless the wheels of the vehicle are so chained or fastened as to prevent it from being dragged, defendant’s violation of the rule was immaterial, as the regulation being in the alternative the blocking of the wheels could by no possibility have prevented the accident.
    Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, third district, in favor of defendant, after a trial by a judge without a jury.
    Maurice B. & Dan’l W. Blumenthal (Dan’l W. Blumenthal, of counsel), for appellant.
    Abram B. Freedman (Jacob Friedman, of counsel), for respondent.
   Bijur, J.

Plaintiff, while walking on the sidewalk of a city street, was bitten by defendant’s horse, which, drawn up at the curb, was swinging its head to and fro waiting to be fed. The complaint, after alleging that the horse was of a vicious disposition, known to the defendant, sets forth ■ article 6, section 1, of the traffic rules of the police department, which provides, in substance, that no horse shall be left unattended in any street or highway unless securely fastened, or unless the wheels of the vehicle are so chained or fastened as to prevent it from being dragged. The complaint further alleges that defendant’s horse at the time of the accident had been left unattended and the wheels unfastened.

Although it is true that an action based upon the keeping of a vicious animal is not one strictly in negligence (see Hunter v. Metropolitan Express Co., 50 Misc. Rep. 158), nevertheless the liability of the owner is “ in a certain sense based upon negligence,” which, after proof of ownership and scienter, is presumed. Muller v. McKesson, 73 N. Y. 195, 199, 200. I do not think, therefore, that, as matter of pleading, it can be successfully maintained that the complaint in the case at bar sets forth two causes of action. But in any event, neither the theory nor the facts upon which a recovery might be based involve any inconsistent- position so as to warrant the compelling of an election, and certainly not before the evidence was all in. See Tuthill v. Skidmore, 124 N. Y. 155; Mayo v. Knowlton, 134 id. 250, 252; Seymour v. Lorillard, 51 N. Y. Super. Ct. 399. The plaintiff emphasizes his reliance upon negligence as a basis for recovery by the allegation of the complaint “ that solely by reason of the negligence and improper conduct of the defendant * * * as heretofore alleged, the plaintiff was injured.” Nevertheless, the learned court below, over plaintiff’s objection and exception, compelled plaintiff to elect whether to proceed on the ‘ theory ’ ’ of maintaining a vicious horse or the violation of a municipal regulation. Plaintiff elected the latter.

At the close of plaintiff’s case defendant moved to dismiss on the ground that the regulation plainly refers to the prevention of the running away of horses and was not framed or designed to meet the contingency disclosed in the case at bar, and, inferentially, I assume, therefore, that the violation of the ordinance was immaterial. It is perfectly evident that the requirement of this ordinance in the alterative, namely, either that the horse be fastened or that the wheels of the vehicle be blocked, would not have been violated by defendant if the latter alternative had been adopted. Yet, that could not by any possibility have prevented the accident which is the basis of this suit. In this respect the case is clearly distinguishable from Kelley v. New York State Railways, 207 N. Y. 342. See, also, Fluker v. Ziegele Brewing Co., 201 N. Y. 40, 43. In this view, it is apparent that defendant’s motion to dismiss should have been granted. But that very consideration only brings into clearer relief the error committed in compelling plaintiff to elect.

Strange to say, toward the conclusion of its case the defendant insisted on offering proof that the animal was gentle, and plaintiff objected on the ground that he was proceeding on a violation of an ordinance.

The only maintainable cause of action stated in the complaint is one for the keeping of a vicious animal and the consequent negligence of the defendant, and defendant was erroneously prevented from introducing proof on this issue.

Guy and Pendleton, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  