
    Edward O’Connell, an Infant, by Timothy O’Connell, his Guardian ad Litem, Respondent, v. Charles M. Jarvis, as Administrator, etc., of Henry S. Jarvis, Deceased, Appellant.
    
      Dogs—attack, of a dog, 'not known to ha vicious, upon a child on its father's premises.
    
    The owner of a dog, not known to him to be vicious, is not liable to a child, who is living with his father, for injuries done to the child by the dog while it is trespassing upon the premises of the father.
    Appeal by the defendant, Charles M. Jarvis, as administrator, etc., of Henry S. Jarvis, deceased, from a judgment of the County Court of Broome county in favor of the plaintiff, entered in the office of the clerk of the county of Broome on the 17th day of July, 1896, upon the verdict of a jury rendered after a trial at a Trial Term of said court, and also from an order entered in said clerk’s office on the 13th day of July, 1896, denying the defendant’s motion for a new trial made upon the minutes.
    The plaintiff, an infant, two and one-half years old, was bitten by a dog of Henry S. Jarvis, defendant’s intestate, and deceased since the verdict. The dog, a large St. Bernard, came into the house of the plaintiff’s father, where the plaintiff was. The dog was gnawing a bone. It was not known or supposed by the intestate to be vicious, but it did bite and seriously injure the plaintiff in the plaintiff’s' father’s house. These facts, and the exceptions to the charge of the court, present -the question upon which the appeal is based.
    
      D. S. & R. B. Richards, for the appellant.
    
      A. D. Wales and Cortland Wilber, for the respondent.
   Landon, J.:

The learned county judge charged the jury : “ That the dog being a trespasser at the time upon the premises upon which this plaintiff was and had a right to be, that the plaintiff is entitled to recover.”

The common-law rule was that the owner of a dog was not liable for trespass on account of the dog’s entering upon the premises of another, because the dog was not property, but a base animal, kept for whim or pleasure; and, being of a roving disposition and kindly disposed toward mankind, it was unreasonable for the law to take any notice of it. It required a statute to make the owner of a dog, not known to him to be vicious, liable for killing or wounding sheep. (Auchmuty v. Ham, 1 Den. 495.) But if a dog become visions, then he is a nuisance, and as soon as his master has notice ' of his vicious propensity he lets him rove at his peril. .

But it is now held that a dog is property and the subject of larceny. (Mullaly v. The People, 86 N. Y. 365.) Hence it is contended' that the owner’s liability for his dog’s trespass upon another’s land is like that of his sheep, cattle, poultry or other animals in which the law gives him property. Such animals, when roving at large, are apt to do damage to the premises they invade, and hence it is the duty of the owner to restrain them from entering upon another’s premises.

But dogs are not apt to do such damage. It would be strange indeed-if the master should be liable for trespass every time his dog or cat set foot upon another’s premises.

In Brice v. Bauer (22 Wkly. Dig. 273) the court held that where defendant’s dog entered upon plaintiff’ s • premises and bit the plaintiff, the defendant was liable because the dog was a trespasser upon plaintiff’s land, although the defendant did not know the dog to be vicious. The Court of Appeals (108 N. Y. 428) affirmed the judgment upon the ground that the record showed that the defendant did know the dog to be vicious.

But if the same rule should apply to dogs as to horses and cattle and other animals because of their property'value, the action must be for breaking and entering the plaintiff’s close, and the particular mischief, such as killing another animal, must be alleged in aggravation of damages. (Van Leuven v. Lyke, 1 N. Y. 515.) Here the plaintiff did not own the premises. He had the right to be upon them as the child of his father, and under his protection. The plaintiff, therefore, has no substantive cause of action to which to annex the aggravation of damages caused by the bite of the dog.

The judgment is reversed, new trial granted, costs to abide the event.

All concurred.

Judgment and order reversed and new trial granted, costs to abide the event.  