
    Louis Stern, Appellant, v. The Hoffman Brewing Co., Respondent.
    Appeal by plaintiff from a judgment of the Municipal Court, fifth district, New York city, dismissing the complaint.
    This action was brought to recover damages for injury to an overcoat of the plaintiff, resulting from a bite of a horse belonging to the defendant.
    Abraham H. Sarasohn, for appellant.
    Ashbel P. Fitch, for respondent.
   MacLean, J.

The complaint was dismissed on the ground that the alleged damage was caused by the malicious conduct of a domestic animal, and the plaintiff failed to establish previous knowledge of vicious inclination.

According to the uncontradicted testimony of the plaintiff, the horses of the defendant were upon a sidewalk, at large and unattended, and, in passing, one of them jumped and bit a piece out of his coat. They were admittedly where they had no right to be, and where, presumably, they would not have been, if attended.Under such circumstances, failure to prove scienter will not relieve the owner of responsibility, “ the vice of the animal being an essential fact only when, but for it, the conduct of the owner would be free from fault.” Dickson v. McCoy, 89 N. Y. 400, 401.

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

Freedman, P. J., and Leventritt, J., concur.

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