
    The People of the State of New York ex rel. Alfred H. Renshaw, Relator, v. C. E. Gillespie, as Justice of the Peace of the Town of Luzerne, Warren County, N. Y., Respondent.
    
      Due process of law-—an order, made without notice to the owner, directing him to hill a vicious licensed dog —■ the owner may contest the validity of the order in an action for the penalty—a review by certiorari must be of a final determination.
    
    An order, made under the provisions of the County Lav/ (Laws of 1892, chapJ 686, §§ 125, 126) by a j ustice of the peace, without notice to the owner of a valuable dog, upon which the statutory tax has been paid, but which has, upon sufficient proof, been found by the justice to be vicious, directing him to kill the dog immediately or be subjected to the statutory penalties imposed for a refusal or neglect to do so, does not deprive the owner of his property in the dog without due process of law, as he may contest the question whether the justice’s determination was properly made when the town supervisor shall bring an action to recover the penalty alleged to have been incurred.
    As the order of the justice is not a final determination of the rights of the . owner, it is not, under section 2122 of the Code of Civil Procedure, reviewable upon certiorari.
    Certiorari issued out of the Supreme- Court and attested on the 24th day of August, 1897, directed to O. E. Gillespie, as justice of the peace of the town of Luzerne, Warren county, N. Y., commanding him to certify and return to the office of the clerk of the county of Warren all and singular his proceedings in regard to an order, made by him in an ex parte proceeding, directing that a certain dog, the property of the relator, be immediately killed.'
    The relator was the owner of a dog called “ Czar,” of the value, as alleged by him, of $500, which he kept in the town of Luzerne, Warren county. He had always paid in said town on the said dog an annual tax as required by statute.
    On August 16, 1897, one Conkling made a complaint in writing to the defendant, a justice of the peace of the town of Luzerne, pursuant to sections 125 and 126 of the County Law (Chap. 686, Laws of 1892), that the dog was dangerous and had attacked several persons and teams peaceably traveling on the highway in said town. The justice took the affidavit of Conkling and of four other persons respecting the truth of the complaint, and thereupon, without notice to the relator of the proceeding, or to any person supposed to be harboring the dog, and without the owner or any one in his behalf having any opportunity to be heard, made an order that the owner of the dog, or the person in possession of the same, kill the dog immediately. under penalty of the law, as by statute in such cases provided.
    Section 125 provides that “ tlie owner or possessor of any dog who shall refuse or neglect to kill him within forty-eight hours after having received such order shall forfeit the sum of two dollars and fifty cents, and the further sum of one dollar and twenty-five cents for every forty-eight hours thereafter,, until such dog is killed.”
    
      T. J. Dillon and T. F. Hamilton, for the relator.
    
      T. W. McArthur, for the respondent.
   Landon, J.:

While it is now settled law that a dog is property, it is still true that some dogs, because of their viciousness, are nuisances. The statute in question seeks the summary abatement of such nuisances. It was the politiy of the law in colonial times, and has been ever since, to make a summary disposition of vicious dogs. (N. Y. Colonial Laws 1732,'Edition of the Statutory. Revisers, Vol. 2,735; Laws 1764, id. Yol. 4, 830; Laws 1768, id. 1070.) These colonial laws were continued in force by the State Constitution. (Art. 1, § 16.) Since the colony became á State numerous statutes for the like purpose have been enacted. (See compilation of these statutes in 1 Birdseye’s R. S. 762.) The statute here under review is in furtherance of the same purpose. (See Fox v. Mohawk & Hudson R. Humane Society [ante, p. 26] ; S. C., 20 Misc. Rep. 461, upon this point.) .

The relator contends that since it is now the settled law, contrary to what was formerly held, that a dog is property (Mullaly v. People, 86 N. Y. 365) the statute must be construed accordingly, and that the-order of the justice directing that the relator kill his dog immediately, having been made without notice to him, or giving him any opportunity to be heard, deprives him of his property without due process of law and is, therefore, void. This, as we have shown in Fox v. Mohawk & Hudson R. Humane Society (supra), would no doubt be so if the statute or the order authorized any officer or person other than the owner or possessor of the dog to kill it, but it directs such owner or possessor to kill it, and prescribes a money penalty for his disobedience. The relator has not killed his dog, and as yet refuses to do so. The statute imposes the money penalty; the justice did not impose it. By section 127 of the County Law, added by chapter 680, General Laws 1896, the penalties imposed are to be collected by the supervisor of the town. The supervisor' must do this by action against the relator. (Code Civ. Proc. § 1926.)

The order of the justice, if properly made, fixes the right to recover in the action, but whether properly made, that is, whether the facts - justified the order, could-be litigated in the action itself. In such action the relator would have full opportunity to be heard and to contest the truth of the complaint upon which the justice based his order, and thus his right to due process of law is secured to him. (Health Dept. v. Rector, 145 N. Y. 32, 48.)

People ex rel. Shand v. Tighe (9 Misc. Rep. 607) is cited. That case arose under an ordinance of the city of Brooklyn, and the police justice who had made an order like the one here under consideration, caused the relator to be brought before him upon a warrant, to enforce the payment of the penalty. We assume that the relator, when brought before the police justice, had no opportunity to contest the truth of the original complaint, and in that view the case was correctly decided, and thus is clearly distinguishable from the one before us.

As the order of the justice of the peace was not the final determination of the rights of the relator, the writ of certiorari should be dismissed. (Code Civ. Proc. § 2122.)

All concurred.

Writ of certiorari is dismissed, with costs.

CASES DETERMINED IN THE SECOND DEPARTMENT IN THE APPELLATE DIVISION, January, 1898.  