
    Argersinger v. Levor.
    
      (Supreme Court, General Term, Third Department.
    
    November, 1889.)
    Pleading—Amendment—To Meet Pbooe.
    A complaint in justice’s court charged an assault on plaintiff “by defendant and his dog, ” but the case was tried on the theory that defendant was liable for negligently keeping a vicious dog. Held, that on appeal to the county court an amendment of the complaint so as to charge that defendant’s dog, being vicious and known to be so by defendant, bit plaintiff, was proper, as the amendment did not change the “ claim ” actually tried, but simply conformed the complaint to it, within the requirement of Code Civil Proc. N. Y. § 723.
    Appeal from Fulton county court.
    Action by Jacob Argersinger against G-ustave Levor for personal injuries sustained from being bitten by defendant’s dog. The action was originally brought in justice’s court, where judgment was rendered in plaintiff’s favor. Defendant appealed to the county court; and from an order permitting plaintiff to amend his complaint, and a judgment affirming the justice’s judgment, defendant appeals. The complaint in the justice’s court alleged that “while plaintiff was peaceably traveling in the public highway the defendant and bis dog assaulted him, and inflicted on his band and arm a grievous injury;” but the case was tried on the theory that defendant was liable for negligently keeping a vicious dog. Code Civil Proc. H. Y. § 723, provides that the court may, before or after judgment, in furtherance of justice, amend any pleading, where the amendment does not change substantially the claim or defense, by conforming it to the facts proved. Section 3347, subd. 6, extends this power to the county courts. The opinion of the county judge, on appeal from the justice of the peace, is as follows:
    “Keck, J. The motion to amend the complaint will be first disposed of. In opposition to the allowance of this amendment, it is urged that by so doing the plaintiff would be allowed to set up a new and distinct cause of action from the one in the original complaint, and that this court has no power to grant such an amendment. It is provided by section 348 of the Code of Civil Procedure that ‘ where a county court has jurisdiction of an action, * * * it possesses the same jurisdiction, power, and authority in and over the same * * * which the supreme court possesses in a like case, and may render any judgment or grant either party any relief which the supreme court might render or grant in a like case.’ And by section 2944 it is also provided that * the court must, upon application, allow a pleading to be amended •at any time before the trial, or during the trial, or upon appeal, if substantial justice will be promoted thereby.’ These provisions are broad enough to ■embrace the necessary power of the county court to grant any amendment, in a case like this, which the supreme court could allow, of a pleading in an action pending therein, and the power of that court to allow amendments in an action or proceeding can ire exercised almost without restriction, if substantial justice will be promoted thereby; and the power of the county •court, in that respect, is as broad as is the power of the supreme court. It has an inherent power, which has been frequently exercised, to the extent of adding new causes of action, which had the effect of avoiding the statute of limitation. Cramer v. Lovejoy, 41 Hun, 581. The fact that the appeal is upon questions of law only does not limit or abridge the powers of this court to allow such an amendment. As to the propriety of allowing the amendment, it may be said that no objections were made to the insufficiency of the original complaint upon the trial of the cause, but, upon the contrary, the return discloses that the case was tried and the complaint treated as being entirely sufficient to justify the evidence given by the plaintiff to establish a cause of action for an injury to the person other than for an assault and battery, over which, had it been such an action as it is now claimed by appellant to be, the magistrate would have had no jurisdiction. In justices’ courts the pleadings are not unfrequently of an informal nature, and much liberality has •uniformly been extended in the construction and upholding of them, especially when they relate to a cause of action of which that court had jurisdiction, and are not objected to for insufficiency upon the trial of the case. Technical nicety and precision are not required in an action before a justice of the peace, unless the objection is raised at the time; and where the parties . go to trial upon a complaint, however defective, without objection on account of the defect, if the plaintiff proves a good cause of action, a judgment in his favor will be good. Hall v. McKeelmie, 22 Barb. 244; Stafford v. Williams, 4 Denio, 182. The action was not one for an assault and battery, but, as the ■evidence given upon the trial shows, for damages for injury inflicted by the biting of the plaintiff by the defendant’s dog, done in the absence of the defendant; and of such an action, being for a personal injury, not for an assault •and battery, the magistrate had jurisdiction. Code Civil Proc. § 2862, subd. 2; Coulter v. Express Co., 56 H. Y. 585. Ho injustice can result to the defendant from the amendment, which simply conforms the pleading to the proof given upon the trial of the case, and substantial justice will be promoted thereby; and it is therefore allowed, upon the following terms and conditions, viz., that the plaintiff pay to defendant $10, to be offset against the judgment, and an order is directed accordingly.
    “Now, as to the merits of this action. As stated above, it was brought to> recover damages for injuries alleged to have been inflicted upon the plaintiff from being attacked and bitten by the defendant’s dog. That the plaintiff was bitten by the dog belonging to the defendant is shown very clearly by the evidence in the return. It is urged by the appellant, however, that the plaintiff failed to make a case justifying his recovery, on the ground that ho did not show that the dog in question was a vicious animal, and known to-be such by the defendant, prior to the attack on the plaintiff. It may be stated, without citing any authority in support of the proposition, that it is a well-settled rule of law that, in order to make the owner of a dog liable in an action at the suit of a person injured by such animal, it must be shown that such owner had knowledge of its vicious propensities. The person who seeks to maintain the action has the burden of showing this, and a failure to do so-would necessarily be a failure to make a case entitling a recovery in the action. It need not, however, be shown that such owner had actual knowledge that such animal was in the habit of attacking people, but such a knowledge of its vicious propensities as would endanger the safety of such persons as-might innocently come in contact with it, being unaware of its true character. An examination of the return in this case discloses the fact that the evidence upon this branch or point is somewhat meager. But, there being some evidence of facts and circumstances, viz., that the animal in question had, prior to the time of its attack upon plaintiff, attacked and bitten another person; that thereafter it was kept, muzzled, upon and about the defendant’s mill and premises; that defendant was about these premises daily during this time, and could hardly have failed to acquire a knowledge of the true character and disposition of the animal,—tending to show, and, perhaps, strong enough to justify the conclusion, that the defendant did know the disposition of the dog to bite people prior to its attack upon the plaintiff, such, must have been the finding of the magistrate, or the judgment would have been otherwise. I have, therefore, notwithstanding some doubts entertained of the sufficiency of the evidence to prove scienter, concluded to affirm the judgment, and an order is directed accordingly.”
    Argued before Learned, P. J., and Pish and Landon, JJ.
    
      Spencer & Banker, [litigar A. Spencer, of counsel,) for appellant. Smith & Nellis, [Andrew J. Nellis, of counsel,) for respondent.
   Landon, J.

The complaint in the justice’s court charged an assault upon the plaintiff “by the defendant and his dog.” No objection was taken upon the trial to the jurisdiction of the justice. The evidence tended to show that the defendant’s dog bit the plaintiff, and that the dog was vicious, and known to be so by the defendant. There was no evidence of any assault by the defendant. Upon appeal to the county court, upon the law only, the county court, upon motion of the plaintiff, permitted the complaint to be amended seas to charge that the defendant’s dog, being vicious and known to the defendant to be so, bit the plaintiff. We think the judgment and order of the county court can be upheld. The justice’s court had no jurisdiction of an action of assault and battery. Code Civil Proc. § 2863. But no such action was tried. That such a cause of action was stated in the complaint did not deprive the justice of jurisdiction of the cause of action which he did try. The latter cause of action was so far set forth in the complaint as to induce the parties to try it, and, when the county court permitted the complaint to be amended, it did not permit a change of the cause of action actually tried, but simply conformed the complaint to it. The amendment did • not change the “claim” in litigation. Id. §§ 723, 3347, subd. 6. Substantial justice was thus promoted. As the justice did not in fact exceed his jurisdiction, it was proper that the record should be kept within it. Judgment affirmed, with costs.  