Opinion
April 20, 1906.
Edo E. Mercelis, for the appellant.
Charles Oakes, for the respondent.
This is an appeal from a judgment dismissing the complaint at the close of the plaintiff's case. The action was brought to recover damages alleged to have been sustained by plaintiff as the result of her having been bitten by a vicious and dangerous dog, owned by the defendant, while she was in the employ of defendant's mother, as a servant.
Upon the trial the plaintiff endeavored to prove that information was given defendant's brother (to whom the care and custody of the dog was intrusted) of its dangerous and vicious character and of statements made by him to third parties tending to establish that he had such knowledge. The trial court sustained objections made to the questions asked for this purpose and excluded the evidence; to these rulings the plaintiff duly excepted.
The defendant's liability rested upon his knowledge of the vicious character of his dog. If the brother had knowledge of the vicious character of the dog prior to the injury, the defendant was charged with that knowledge, although it may not have been communicated to him. ( Brice v. Bauer, 108 N.Y. 428; Niland v. Geer, 46 App. Div. 194.) Evidence of such knowledge was, therefore, competent, and its exclusion error for which the judgment must be reversed.
Judgment reversed and new trial ordered, costs to abide the event.
WOODWARD, JENKS and HOOKER, JJ., concurred.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.