Genenz v. De Forest

The defendant alleged in her answer that she was a married woman. She proved this on the trial. In the case of Fitzgerald v. Quann, 17 N. E. Rep. 354, (lately decided by the court of appeals, affirming the same case in 33 Hun, 652,) the court say that, “ except in eases affecting her separate property, a married woman should be sued with her husband. ” That was an action for slander. This is an action for injuries caused by' plaintiff being bitten by a dog which did not belong to defendant, but which the proof showed to have been on premises occupied by her, and which the plaintiff claimed to have been harbored by her. The dog which bit in this case was no more the woman’s separate estate than the tongue which uttered *153the slanders in the other. We think that case is decisive of this. If that case is not quite in harmony with Rowe v. Smith, 45 N. Y. 230, the later decision ■should be followed. We think the objection was sufficiently stated in the answer to allow defendant to avail herself of it upon the trial. The plaintiff urges that the fact that a committee has been appointed for the husband, and that this defendant is such committee, takes this case out of the rule as now settled by the court of appeals. We think not. It is remarked in the opinion in that case that it is not of very great importance how the question is decided ; and it is not worth while to begin to make exceptions to a plain rule.

We may say, further, that there is little, if any, evidence of viciousness in the dog prior to the accident. Two girls were passing along the highway. The dog ran out and barked, and ran towards them, but did nothing. They were frightened. So they might have been at a mouse, but it would not follow that the mouse was vicious. The dog grabbed a coat hanging down from a man’s shoulder. The dog was tied in a wood-shed, and jumped for Mrs. Genenz’s shoulder when she went in. Reynolds, who worked for the defendant, and who brought the dog to defendant’s house, kept him chained. This is substantially all the proof of viciousness; and it shows little but the playfulness of a puppy, which the animal was. There was hardly the scintilla of evidence spoken of in Dwight v. Insurance Co., 103 N. Y. 358, 8 N. E. Rep. 654. Judgment affirmed, with costs.

Landon and Ingalls, JJ., concur.