F. Hiscock for respondent.
FOLGER, J., reads for affirmance.
All concur.
Judgment affirmed.
CORIDON S. THOMPSON, Assignee, Etc., Respondent, v. GEORGE A. SWEET et al., Appellants.
Where a sheriff retains and uses moneys in his hands during the pendency of an action to determine conflicting claims thereto, in disobedience of an order of court, entered upon stipulation of the parties directing a deposit thereof, he is properly chargeable with interest thereon.
(Argued April 24, 1878; decided May 21, 1878.)
THIS was an action by plaintiff as assignee in bankruptcy of Philo W. Porter to set aside a judgment in favor of defendant Brown against the bankrupt, on the ground that it was obtained collusively and in fraud of creditors; also to reach the avails of property of the bankrupt in the hands of defendant Sweet, which property was sold by said defendant as sheriff upon execution issued upon said judgment.
The principal questions were disposed of on the facts. An order was entered upon stipulation of the attorneys for the respective parties in the bankruptcy court, by which the sheriff was directed to go on and sell the property, bringing the proceeds after deducting expenses into said court and depositing the same with its clerk. The sheriff disobeyed the order, deposited the same to the credit of his private account, and used and employed the same in his private business; he was charged with interest, held, no error.
It was claimed that the State courts had no jurisdiction of the action. This was decided adversely on authority of Kidder, Assignee, v. Horribin (72 N. Y., 600). See also, Cook v. Whipple (55 N. Y., 150); Claflin v. Houseman (3 Otto, 137).
L. W. Thayer for appellants.
Thomas Corlett for respondent.
MILLER, J., reads for affirmance.
All concur, except RAPALLO, J., dissenting; CHURCH, Ch. J., not voting; ANDREWS, J., absent.
In the third line of head note to Mathez v. Neidig, 72 N. Y., 100 “(§12) "
A complaint in an action for lim-
ited divorce alleged that defend-
ant, on various occasions, " wan-
tonly and maliciously charged the
plaintiff with unchastity and infi-
delity to her marriage vows,' "9**
"that on one occasion in Decem-
ber, 1876, he pointed a pistol at
her head, when angry, apparently
with intent to kill her," and on
another occasion "ordered her out
of the house, and said he would
make it too hot for her, and threat-
ened to murder her;" which acts
were without cause or provocation,
and that a separation was neces-
sary "to her own existence" and
the welfare of the children. The
relationship of the parties as hus-
band and wife was not questioned.
Held, that it could not be determ-
ined as matter of law that plaintiff
79
3. The rule, therefore, of non-liabil-
ity of a master to a servant, for
injuries occasioned by the negli-
gence of a co-servant, cannot be
invoked to shield the owner of such
an animal from liability for injuries
to a servant, where a fellow ser-
vant was negligent in not properly
fastening the animal, or in not
giving notice of its being loose.
4. The owner will not be relieved
from liability by slight negligence
or want of ordinary care on the
part of the person injured; to con-
stitute a defense, acts must be
proved, with notice of the character
of the animal, which would estab-
lish that the injured person volun-
tarily brought the injury upon
himself
Id.
5. Defendants owned and kept in an
inclosed yard surrounding their
factory a Siberian blood-hound,
very large and ferocious, which
was usually fastened up in the
day-time and loosed at night.
Plaintiff was employed in the fac-
tory as night watchman; it was
his duty to open the gate to the
yard every morning. On return-
ing to the factory one morning after
performing this duty, he was at-
tacked by the dog and seriously
injured. In an action to recover
damages for the injuries, it ap-
peared that it was the custom of
G., defendant's engineer, to loose
the dog at night and to fasten him
in the morning, and to notify
plaintiff when the dog was loose.
No such notice was given on the
morning of the injury, and plaintiff
testified that he did not know or
suppose the dog was loose. No
circumstance was proved calling
for unusual precaution on his part.
Held, that it was not incumbent
upon plaintiff to examine to see if
the dog was fastened, and the evi-
dence authorized the court to direct
a verdict for plaintiff; that, to
warrant a submission of the ques-
tion of contributory negligence on
the part of plaintiff, the evidence
should have been sufficient to war-
rant the jury in finding actual no-
tice that the dog was loose, or at
least that the plaintiff had reason
so to believe.
Also held, that plaintiff, by accept-
ing the employment, did not as-
sume the risk of such an accident;
that the most that could be said
is that he assumed the risks conse-
quent upon the keeping of a
ferocious dog, to be kept fastened
up, save when he was otherwise
notified, and beyond this he was
entitled to the same protection as
other persons.
ld.
7. One keeping a vicious dog with
knowledge of its propensities is
liable for injuries caused by it.
Negligence in the ordinary sense
of the word is not an element of
the cause of action, nor is contribu-
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