
    (33 Misc. Rep. 112.)
    BENNETT v. MALLARD.
    (Supreme Court, Appellate Term.
    November 12, 1900.)
    Animals—Vicious Propensities—Notice.
    Proof that a horse balked and kicked while on the road does not raise the inference that he would kick while in his stall, so as to bring notice to the owner of a propensity to kick while standing therein.
    Appeal from municipal court, borough of Manhattan, Eighth district.
    Action by William H. Bennett against Joseph Mallard. From an order vacating and setting aside a verdict, plaintiff appeals.
    Affirmed.
    Argued before TRUAX, P: J., and DUGRQ and SCOTT, JJ.
    C. J. Earler, for appellant.
    J. R. Bowen, for respondent.
   PER CURIAM.

This is an appeal from an order vacating and setting aside the verdict of a jury. Section 1367 of the consolidation act expressly provides that an appeal shall be from an order setting aside the verdict of a jury as from a judgment. See Douglas v. Sieferd, 18 Misc. Rep. 188, 41 N. Y. Supp. 289. There was no evidence to show that the horse was accustomed to kick while in the stable, and the fact that he balked and kicked while on the road does not raise the inference that he would kick while in his stall. In an action against the owner of an animal for injuries inflicted by it, the gravamen of the action is the keeping of the animal with knowledge of its propensities. It is true that proof that the ánimal is of a savage and vicious nature is equivalent to express notice (Muller v. McKesson, 73 N. Y. 195); but it never has been held that the evidence that a horse would balk and kick while drawing a load in the snow (which is the evidence in this case) raises the presumption that it would kick while standing in the stall in the stable.

The order appealed from is affirmed, with costs.  