
    Max Bogodonow, Respondent, v. The New York Lumber & Storage Co., Appellant.
    (Supreme Court, Appellate Term,
    December, 1904.)
    Action to recover damages for bite of dog — Scienter must be shown.
    Scienter must be shown iu an action to recover damages for bite-of dog. Classical and modern precedent stated. When evidence insufficient to establish scienter.
    Appeal by the defendant from a judgment in favor of the plaintiff rendered in the Municipal Court of the city of Rew York, thirteenth district, borough of Manhattan.
    W. H. James, for appellant.
    Jacob W. Block, for respondent.
   MacLean, J.

This judgment is to be reversed for lack of evidence to sustain the recovery had for being bitten by a dog kept upon the defendant’s premises, part of which at least the plaintiff entered by invitation. His own testimony, which is contradictory, seems to ° show that he wandered whither he was not bidden, out of the sight of his conductor and so trespassingly came within reach of the dog which was tied. However he received his injury he was bound to establish a case within the law well settled long ago in England, as it was in the Mosaic code, that the owner of a domestic animal is only liable if he knew that the animal is accustomed to do mischief (Jenkins v. Turner, 1 Ld. Raym. 110; R. v. Huggins, 2 id. 1583), or as more lately phrased, to charge the defendant with liability it was essential that he had or was chargeable with notice that the dog was vicious. Bauer v. Lyons, 23 App. Div 205. The plaintiff would make this out in two ways: First. He adduces sundry judicial observations as to inferences possible from the dog’s being tied. Sententious as be some of these judicial notices, they are all dicta, as to the facts, even the most cited of them was in a case, as pointed out by Landon, J. (O’Connell v. Jarvis, 13 App. Div. 4), where the record showed that the defendant did know the dog to be vicious. Such judicial notices avail nothing if made upon peculiar personal knowledge. 1 E. D. Smith, 4. Evidence of the facts assumed certainly lacks the requisite notoriety. 91 U. S. 43. In none of them was regard had for this city’s ordinances, nor for the pervasive dog-catcher and the alert purveyors for the revenues of the Society for the Prevention of Cruelty to Animals. Secondly. There came one who testified that visiting the premises a month or two before the plaintiff’s visit he saw a dog, hardly identified with the offending one -—• two were kept — and that of it the same officer said: “ Look out for the dog or it will bite you.” This was denied explicitly, but assuming that the officer said so, such a scare-cat warning would not prove the requisite scienter. Something to that effect is often posted now-a-days, over harmless brutes', in stables and outhouses, and anciently was lettered in the floor of many a Pompeian vestibidwm. It may be as old as UCsop’s hapless cry of the wolf, for more than two centuries before the current era Theocritus’ fair Praxinoe, the presumably fair Praxinoe, when fain to warn her child from the way she would not have him go cried: “ There’s a horse that bites.”

In default of evidence to sustain the judgment, it should be reversed.

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

Gildersleeve, J., concurs.

Freedman, P. J. (concurring).

The judgment in favor of the plaintiff should be reversed and a new trial ordered, with costs to the appellant to abide the event for the reason that the evidence wholly fails to support the charge of scienter. See Bauer v. Lyons, 23 App. Div. 204.

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