Edward Rowan, Respondent, v. William H. Sussdorff, Appellant

Edward Rowan, Respondent, v. William H. Sussdorff, Appellant. Second. Department, December 21, 1911. Tort — animal — dog is property — nominal damages — abatement — erroneous nonsuit. The complaint in an action wherein the plaintiff seeks to recover damages because the defendant came upon his lands and killed his dog should not be dismissed because of the failure of the plaintiff to prove the value of the dog. A dog is property, and hence its destruction without justification entitled the plaintiff'to nominal damages, and even if the .dog were valueless the trespass upon the plaintiff’s lands entitled the plaintiff to a recovery. • , The rule that a judgment will not be reversed in order to afford*the.appellant an opportunity to recover nominal damages does not apply where the failure of the appellant to show more than nominal damages was not inherent in his cause of action,' but was due to his temporary inability to produce witnesses as to damages. ■■ ■ The pendency of two actions cannot be pleaded in abatement unless they were begun simultaneously; if begun at different times, the pendency of the former action may be pleaded in abatement of the latter action. Appeal by the defendant, William H. Sussdorff, from an order of the Supreme -Court, madej at the Kings County Trial Term and, entered in the office of the clerk of the county of Kings on the 13th day of March, 19.11. . ' Adelbert W. Boynton, for the appellant. William J. Martin, for the respondent. [MAJORITY — Jenks, P. J.:] Jenks, P. J.: This is an appeal from an order ajt Trial Term that vacates an order for the dismissal of the complaint, the judgment thereon, and restores the cause to the calendar for trial. The plaintiff complains that the, defendant came upon his lands and killed his dog. The defendant answers that he killed the dog in protection of himself and of his household. The learned Tria]; Term in its opinion says that the nonsuit rested entirely upon failure to prove the value of the dog, and that it thinks.it erred in the exclusion of certain testimony as to value. Brit we think the learned court. did not err at the trial. The questions addressed to the plaintiff and excluded were whether he had any value that he placed on the dog before the: shooting, and at what price he was willing to sell the dog. Neither of these questions went to elicit the value of the dog as property.. The plaintiff was also asked what was the value of the dog, if he could state it, but this question was objected to properly, in that the witness had not been qualified, We think, however, that this order may be sustained. A dog is property (Mullaly v. People, 86 N. Y. 365), and the destruction thereof without justification would entitle the o wner to nominal., damages at least, and, therefore, to a submission of his case to the jury. (Van Rensselaer v. Jewett, 2 N. Y. 135; Nilsson v. De Haven, 47 App. Div. 537, 541; affd., 168 N. Y. 656.) Moreover, even if this dog was valueless, there was a trespass upon the land of the plaintiff for which the plaintiff was entitled to a verdict. (Gibbons v. Van Alstyne, 29 N. Y. St. Repr. 461.) While it is true that a judgment will not he reversed in order to afford the recovery of nominal damages, yet this is not a case where it appears that only nominal damages can he recovered, for a reading of the record shows that the plaintiff,Was temporarily unable to produce proof of value, and asked both a continuance and then a withdrawal of a juror because his proof was not at hand. I. think, then, that the order of the court may he upheld. (See Thomson-Houston Electric Co. v. D. L. I. Co., 144 N. Y. 49.) The appellant showed that immediately after the said dismissal, and on the same day, the plaintiff took out a summons in the Municipal Court, second district, city of New York, for the same cause of action which was then pending. But the pendency of the two actions cannot be pleaded in abatement unless they were begun simultaneously. When begun at different times, the pendency of the former may he pleaded in abatement of .the latter. (Haight v. Holley, 3 Wend. 258; Nicholl v. Mason, 21 id. 339; Renner v. Marshall, 1 Wheat. 215.) The order must he modified by providing that the plaintiff must pay a trial fee and the disbursements of the trial, and as so modified is affirmed, without costs. Burr, Carr, Woodward and Rich, JJ., concurred. Order modified by providing that the plaintiff pay a trial fee and the disbursements of the trial, and as so modified affirmed, without costs.