James F. Martin, as Guardian ad Litem for Raymond Martin, an Infant, Appellant, v. William E. Borden, Jr., Respondent

James F. Martin, as Guardian ad Litem for Raymond Martin, an Infant, Appellant, v. William E. Borden, Jr., Respondent. Second Department, December 23, 1907. Justice’s Court—waiver of jury by failure to pay fees A- animals — vicious dog — facts showing scienter. Although a party demands a jury trial on joinder of issue in a Justice’s Court the right is waived by a failure to advance-the jurors’ and constable’s fees as required by statute. A finding of scienter oí the defendant as to the vicious character of his dog which bit the plaintiff may be based upon 'evidence that the dog habitually ran from the defendant’s yard and attacked pedestrians and vehicles, although there is no proof-that he actually bit any one. . . , Appeal by the plaintiff, James F. Martin, as guardian ad litem, etc., from a judgment of the County Court of Westchester county, entered in the office of the clerk of said county on the 25th day of January, 1902, pursuant to an order entered- in said clerk’s office on • the 27th day of December, 1901, reversing a judgment of a justice of the peace of the town of Cortlandt in. favor of - the plaintiff, and also from the said order pursuant to which the judgment appealed from was entered. - - ' James Dempsey, for the appellant. Clinton F. Ferris, for the respondent. [MAJORITY — Gaynor, J.:] Gaynor, J.: The plaintiffs judgment was for damages by the bite of the defendant’s dog. It was reversed on the grounds that a jury trial was refused and that it was not shown that the defendant had knowledge of the viciousness of. the dog. The defendant demanded a trial by-jury at the joining of issue, but did not deposit the jurors’ and constable’s fees in advance, as directed to do by the justice and required by law. This was á waiver of a jury trial, and it was the duty of the justice to proceed with the trial without a jury on the adjourned day, as he did (Code Civ. Pro. § 2990). There was. no evidence of any direct notice to the defendant of the dog having attacked any one before, but the evidence showed that the dog had habitually run out of the yard where the defendant lived with his parents and angrily attacked people in the street, afoot, on bicycles and in wagons for several months, though without getting hold of them. This was am pie to imply knowledge to the defendant. It is permissible to find that he knew'what was so notorious. The judgment of the County Court should be reversed and that of the Justice’s Court affirmed. Woodward,. Jenks, Eich and Miller,. JJ., concurred. , Judgment of the County Court of Westchester county reversed, and that of the Justice’s Court affirmed, with costs.