
    JOSEPH SMITH, Respondent, v. BURR GRISWOLD, Appellant.
    
      Marled vaVtie of a dog — -evidehe& ds'to'.
    
    In this action, brought- tri- recover the value of a1 dog killed by the'-defendatít, jt appeared that the dog was a farm dog, trained to bring up cows and as a watch' dog; briirig- part’ shepherd and part’ bull. Opon the trial plaintiff was asked, and, against' defehdant’s’ objection' arid' deception; allowed' to státb What the market value'Of- the dog whs.
    
      Held, that, as the dog was not shown to have any market- value! the admifesion-of the answer was error.
    Appeal from1 a-judgment of the County Court of Chautauqua county, affirming’a judgment of a’Justices’ Court in favor’of the plaintiff.
    
      John G. Record, for the appellant.
    
      F. £. Edwards-,■ for’ the’ respondent.
   Talcótt-, P. J.:

This is an appeal by' the' plaintiff from the jndgffieñt of the County Court of Chautauqua’ county, affirming" a- judgment Of a j ustice of the peace.

The action' was- brought to" recover" damages-' fob" thé’ killing' of the plaintiff’s- dog. by the defendant. The' evidence ivas,- that while the defendant was peaceably passing along'the highway, On foot, ill the evening, the dog’ came towards hiui: in-a menacing manner,, and the defendant- shot- him. The dog; was: a large dog, about two feet high, and weighing’ about 160' pounds. He had before then molested- the defendant’ás'lie'was'riding" by the plaintiff’s- premises ill the highway. And- the justice' fouiidj as a question of fact, that “the dog"was:known1 t'o!worry-’people peaceably traveling along'the highway-’.” And’ the' justice - seems to have ruled that the defendant,- being aware'- of his vicious habits in- that respect, and having' failed t'o’make'- coñipláibf- to a, justice of the-peace'under the’Statute1 (2 R. S. [6tH ed'.], 1001:, § 17), was not justified' iff killing, thb’ dbg, iff cáfee Hé;0limó' out upon the highway and followed the defendant in a menacing manner. Though this view of the justice may well be doubted, it is not necessary to decide that question in this case, as we think improper evidence was admitted on the part of the plaintiff, which was objected to, and the admission of which was alleged as a ground of error on the appeal to the County Court. It appeared that the dog was a farm dog, and, as the plaintiff claimed, trained to bring up the cows, and trained as a watch dog, supposed by the plaintiff, or called, “part shepherd and part bull.”

The plaintiff, when on the stand as a witness, ivas asked what was the market value of the dog. The defendant objected to this question, and the justice overruled the objection, and the plaintiff stated that the value of the dog was twenty-five dollars. The same question was asked of the other witnesses for the plaintiff, and similar answers made, under objection by the defendant; and the justice seeirs to have proceeded, on such evidence,, to render his judgment in the case. The dog ivas not shown to have any “ market value.”

It appears to be well settled that such testimony is inadmissible. (Dunlap v. Snyder, 17 Barb., 561; Brown v. Hoburger, 52 id., 15.) In the last cited case, which seems to have been an action for killing a dog of a similar character, Mr. Justice Johnson, in delivering the opinion of the General Term of the seventh district, says: “Opinions in regard to the value of dogs, which have no standard or marketable value, are necessarily fanciful, depending on the fancy or predilection of the .witness, and arc not competent. In order to render opinions as to the value of a dog competent, it should first be shown that the dog in question is a marketable animal, either belonging to some peculiar breed, or possessing some peculiar qualities which make him an animal usually vendable at' some proximately regular price. “ Nothing of the kind was shown here. It was shown that he was a trained farm dog,' and it wais offered to be shown that the witness, who was the plaintiff himself, was acquainted with the value of such dogs, and had seen them bought and sold. This fell far short of offering to prove that the dog was a marketable animal, or had any market value. * * * ' I am of opinion, therefore, that the evidence was properly excluded.” . (Op. of Johnson, p. 25.)

In the case at bar, the plaintiff said that he did not know of dogs of this breed being bought and sold; that he had “heard of dogs being sold that were trained,-such as carrying baskets — some one particular thing — not trained as this dog was.” It is evident, from the statement of the plaintiff, that he did not claim that this dog had any particular market value, and that his estimate of his value was merely fanciful.

The judgment of the County Court, and .of the justice, is reversed.

Present. — Talcott, P. J., Smith and Hardin, JJ.

The judgment of the County Court of Chautauqua, and that of the justice, reversed.  