Edward Ellingsen, an Infant, by Annie Ellingsen, His Guardian ad Litem, Appellant, v. Carl G. F. Linstrand, Respondent

Edward Ellingsen, an Infant, by Annie Ellingsen, His Guardian ad Litem, Appellant, v. Carl G. F. Linstrand, Respondent. Second Department, July 23, 1907. Animal — injury by vicious dog —- erroneous nonsuit. Under evidence sufficient to warrant a jury in believing that the defendant’s dog, which bit the plaintiff, was kept by the defendant for several years' with knowledge of his vicious disposition, and that the attack, was not invited by the plaintiff, who entered the stable where the dog was confined at the request of the defendant’s stableman, it is error to dismiss the complaint. Appeal by the plaintiff, Edward Ellingsen, an infant, by Annie Ellingsen, his guardian ad litem, from a judgment of the Municipal Court of the city of New York in favor of the defendant^ rendered on the iRh day of February, 1907,." dismissing plaintiff’s complaint -at the close of his evidence, in an action brought to recover' damages, alleged tb have been sustained in ■ consequence of - his haying been bitten by a dbg owned by defendant, and kept in his stable as a watch dog: ' William Adams Robinson, for the appellant. Dean Potter for the respondent. [MAJORITY — Rich, J.:] Rich, J.: The only question to he considered is whether the plaintiff .made out a case entitling him to go to the jury. While the evidence might not he regarded as entirely satisfactory, yet there was sufficient, if the jury believed it, upon which to base a finding that this was a ferocious, dog,, kept by defendant for several year's, with knowledge of his vicious disposition, arid that the attack -on plaintiff '.was not invited; that he was not at fault. Plaintiff entered the stable where the dog’ was confined, at the request of defendant’s stableman in -charge, to hold a lantern, and was immediately attacked by the dog and severely bitten. , - . We think the plaintiff made out-a case éntitling him to go'to the jury upon all the questions involved,- and the' judgment must, therefore, be reversed and a new trial ordered, costs to abide the event. Woodwabd, Jenks, Hookee and' Gaynoe, JJ., concurred; the latter in separate memorandum. • [CONCURRENCE — Gaynor, J.] Gaynor, J. (concurring): Why the justice dismissed this case^at the close of the plaintiff’s evidence does not appear. The jury could, have found that the defendant’s stableman invited the plaintiff into the .defendant’s stable to hold a lantern, and that as soon as he went in the defendant’s dog rushed at him and bit him. There was ample evidence that the dog had- previously bitten other people, and that the defendant knew it. The justice was about to dismiss the case on. thé ground as he stated that there was no evidence that the stableman “had control of this dog”. The'evidence all showed that the dog had been kept there for a long time; and in'whose charge would he be presumed to be except in that of the man in charge of the building.' But how did that matter ? - He was kept there by ■the defendant, whoever had charge of him. The .plaintiff then called the stableman and showed that he was in charge,’frustrated all the while however by objections and rulings that should have no place in the trial' of a cause; but the justice still persisted in dismissing the case. ■ - . The judgment should be reversed. Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.