
    William H. Bennett, Appellant, v. Joseph Mallard et al., Respondents.
    (Supreme Court, Appellate Term,
    November, 1900.)
    Tort — Injuries from the kick of a horse — Scienter.
    In an action for injuries received from being kicked by a horse while in its stall in a stable, the plaintiff must prove scienter upon the part of the owner of the horse, and no proof of its viciousness in the stall is afforded by evidence that the horse would kick and balk on the road while drawing a load in the snow.
    Appeal from a judgment in favor of the defendants, rendered in the Municipal Court of the city of New York, eighth district, borough of Manhattan.
    
      O. J. Earley, for appellant.
    J. E. Bowen, for respondents.
   Per Guriam.

This is an appeal from an order vacating and setting aside the verdict of a jury. Section 1367 of the Consolidation Act (L. 1882, ch. 410) expressly provides that an appeal shall lie from an order setting aside the verdict of a jury, as from a judgment. Douglass v. Seiferd, 18 Misc. Rep. 188.

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 keening of the .animal with knowledge of its propensities. It is true that proof that the animal 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 evidence that a horse would 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.

Present: Tbuax, P. J., Scott and Dtjgbo, JJ.

Order affirmed, with costs.  