Tucker v. Sclafani & Sons, Inc.

• Citation: 200 N.Y.S.2d 778
• Parties: Richard TUCKER, Plaintiff, v. SCLAFANI & SONS, INC., Defendant.
• Decision Date: 06 May 1960
• Court: New York Supreme Court

Page 778

200 N.Y.S.2d 778

Richard TUCKER, Plaintiff, v. SCLAFANI & SONS, INC., Defendant.

Supreme Court, Special and Trial Term, New York County, Part XXI.

May 6, 1960.

Fuchsberg & Fuchsberg, New York City (Jesse Y. Schwartz, and Stephen Seldin, of counsel), for plaintiff.

William R. Ahmuty, Jr., New York City, for defendant.

ARTHUR G. KLEIN, Justice.

Defendant's motion to set aside the verdict of the jury is denied. Whether the defendant knew or should have known of the vicious propensities of its dog is a question of fact which has been resolved by the jury in plaintiff's favor. The defendant offered no proof at the trial but rested at the conclusion of the plaintiff's case. Every fair inference must be given to the facts testified to in the plaintiff's case and accepted by the jury.

'When a person keeps a dog for the purpose of guarding his property against trespassers or criminals, it is not unreasonable to infer knowledge on his part of the propensities of the dog to attack and bite mankind, and negligence in allowing him to be at large. The defendant * * * cannot, therefore, say that there was no evidence for the jury. It was, we think, a fair question of fact whether the defendant knew that the dog was accustomed or liable to attack people, and if he did he was chargeable with negligence in permitting him to be at large, and liable for the injury committed.' Perrotta v. Picciano, 186 App.Div. 781, 175 N.Y.S. 16, 18.

If the viciousness manifests itself only under certain conditions or circumstances, the duty is upon the owner or keeper to secure the dog at such times against the possibility of injuring others (Hahnke v. Friederich, 140 N.Y. 224, 35 N.E. 487). Knowledge of vicious propensities of an animal may be brought home to an owner by proof of prior acts of a similar kind or may be imputed to the owner from recognized dangerous characteristics, if they are of a nature to cause an injury.

It was for the jury to determine from the evidence before it whether the dog which allegedly barked at other persons prior to this occurrence was the same dog as the one involved in the incident with which this case is concerned. The motion is accordingly denied with exception.

All motions on which decision was reserved are denied with exception. Thirty days' stay and sixty days to make a case.