
    Mahala Ross, Respondent, v. Patrick J. Healy, Appellants.
    (Supreme Court, Appellate Term,
    November, 1904.)
    Action to recover a dog — Charge of the court as to its age as determining its ownership.
    On the trial of an action involving the question whether a dog present in court belonged to the plaintiff or to the defendant, the plaintiff testified that her dog was at the time of the trial some months over eight years old, while the defendant contended that the dog present in court was under five years of age. The plaintiff swore two experts upon the question of the age of the dog, one of whom placed the dog’s age at -six years and the other at more than six years, but under' seven years. The defendant swore three expert witnesses upon the subject of the dog’s age, one of whom placed his age at from three and a half to four years, and the other two at under five years.
    The court instructed the jury that if they found that the dog in suit was “ not over five years of age or thereabouts, you will naturally find for the defendant. If you find that it is an older dog, seven or eight years of age, or thereabouts, you will find for the plaintiff.”
    The defendant then asked the court to charge that “Unless from all the testimony the jury should be satisfied that the animal in controversy is eight years and upwards of age, their verdict must be for the plaintiff.”
    The court refused to charge as requested, saying that he “ had covered that.”
    
      Held that in view of the testimony, the charge that the jury should find for the plaintiff if “ it is an older dog (than five years), seven or eight years of age, or thereabouts,” was misleading and that a new trial should be ordered.
    Appeal by the defendant from a judgment of the Municipal Court of the city of New York, eleventh district, borough of Manhattan, in favor of the plaintiff.
    Victor J. Dowling, for appellant.
    Pierre M. Brown, for respondent.
   Freedman, P. J.

The question involved in this case arises over the ownership of a dog. The defendant, P. J. Healy, in March, 1899, purchased in San Francisco a dark red Irish setter, then about six weeks old. This dog remained in his possession in San Francisco until September 3, 1902. On September 1, 1902, defendant purchased a collar, had it marked P. J. Healey,” and placed it upon the dog’s neck. This dog, with the collar still around his neck, was brought to this city by the defendant, and was in his possession, wearing the same collar, down to March, 1903. The plaintiff procured her dog in 1895, then about two months old. She claims to have lost this dog about October 27, 1902, and from that time until November 4, 1903, she did not see it.

The foregoing facts are admitted by stipulation of the parties, and were read in evidence upon the trial, and the plaintiff also admitted that the defendant had his dog continuously in his possession from October 26, 1902, until November, 1903, at his residence, near where the plaintiff then found it. The proof shows that on November 4, 1903, the plaintiff saw the dog in the street and took it to her home. The defendant missing his dog, advertised for its return, and on December 4, 1903, the defendant’s wife, as she testified, saw the dog on the street; she called him, he came up to her, and after some conversation with a maid who had the dog in charge, she took the dog home with her. The plaintiff’s dog at the time of the trial was some months over eight years of age, while defendant’s dog was under five years of age.

The case was stubbornly contested, but nearly all the testimony was taken without objection. The plaintiff produced eight witnesses, including herself and husband, who testified to more or less acquaintance with the dog owned by the plaintiff, and while some were quite certain, and others less so, they all practically declared that the dog, then present in court, belonged to the plaintiff.

On the contrary the defendant produced eleven witnesses., including the defendant and his wife, who testified to an equal acquaintance with the defendant’s dog, and were equally positive that the dog in court was the defendant’s.

Upon the question of age of the dog in court, a very material point in issuej of the two witnesses for the plaintiff, sworn as experts, one placed the dog’s age at about six years, and the other at more than six years, but under seven years. As according to plaintiff’s witnesses her dog must have been over eight years of age at the time of the trial, this testimony was more favorable to the defendant’s contention than the plaintiff’s.

Three expert witnesses for the defendant testified. One placing his age at from three and a half to four years, and the other two at under five years.

None of the defendant’s witnesses testified to ever seeing but one dog at Healy’s or in his possession, and Healy and his wife declare positively that they never had but one.

The domestic having the dog in charge at the time the defendant’s wife claimed it, testified that on the morning of December fourth, she took the dog out from Ho. 440 West End avenue, without his leash; that he ran up to the corner and crossed over; that defendant’s wife was coming around the corner and called the dog to her; that after some conversation Mrs. Healy took the dog by the collar and led him until she got to the corner of Eighty-first street and West End avenue, when she released the dog; that he ran beside Mrs. Healy until she reached her home, No. 317 West Eightieth street. It was also shown by the defendant’s wife and by Mrs. Slattery, the wife of the landlord of the defendant, and living in the same house, that the dog exhibited great delight when he reached the home of the defendant; that he ran from room to room in the house, and that he recognized the several members of the family and the children of Mrs. Slattery.

The testimony on the part of the defendant also establishes the fact that the defendant had a dog in his possession in September, 1902, nearly two months before plaintiff’s dog was lost; that a dog was continuously in his possession down to November, 1903, when plaintiff picked it up, claiming it as her own. If, therefore, the plaintiff’s claim is correct, the defendant must have had two dogs at his residence in this city from September, 1902, down to March, 1903, one being the dog brought by him to Hew York in September, and the other dog lost by plaintiff October 26, 1902, and he must, some time after March, 1903, have changed the collar from the neck of his own dog to that of plaintiff’s.

That the defendant is .thus guilty of larceny and perjury ought not to be believed, based upon the testimony of plaintiff and her witnesses, who concededly had not seen the dog for over one year, and who might, therefore, have been honestly mistaken as to the identity of the dog in question, and as many of whom merely testified to their “best knowledge” that the dog in court was the plaintiff’s dog.

One of plaintiff’s witnesses, an employee in a meat market near Eighty-second street, testified that he had seen the Ross dog daily for three years or over, from 1900, by reason of the plaintiff coming into the market and trading there, although plaintiff testified that her dog was taken to Formandie-by-the-sea in May, 1901, and remained there all summer, and that she “ never traded there (the market aforesaid) only occasionally when it was convenient for me to go in.”

The judge instructed the jury that if they found that the dog in suit was “not over five years of age or thereabouts, you will naturally find for the defendant. If you find that it is an older dog, seven or eight years of age, or thereabouts, you will find for the plaintiff.” And when defendant’s counsel asked the court to charge that “ Unless from all the testimony the jury should be satisfied that the animal in controversy is eight years and upwards of age, their verdict must be for the defendant,” the court substantially refused, saying he “ had covered that” As before stated, the plaintiff’s dog, by her own testimony, was some months over eight years of age at the time of the trial, and the testimony that the dog produced before the jury at the time of the trial was considerably less than that age, was wholly in defendant’s favor, and, therefore, the charge of the judge, that if you find that “ it is an older dog (than five years) seven or eight years, or thereabouts,” was not based upon testimony given in the case, and in a case like this might have easily misled the jury.

The record is very voluminous; the testimony taken, together with the judge’s charge to the jury, consisting of 184 typewritten pages. It has been carefully examined, and bearing in mind that upon the plaintiff falls the burden of proof, that to sustain the verdict rendered she must show by a preponderance of evidence that her claim is just and her contention right, it is quite clear that had the jury carefully weighed the evidence, and given due regard to the probabilities to be reasonably deducted therefrom, the verdict would have been for the defendant. The interests of justice certainly demand that a new trial be had.

Bischoff and Fitzgerald, JJ., concur.

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