Lyke & Dumond v. Van Leuven
New York Supreme Court
Error to the Ulster C. P. Van Leuven sued Lyke & Dumond before a justice of the peace, and declared in case, for that the defendants’ sow and pigs mangled and'tore a cow and calf of the plaintiff so that they died. Plea, the general issue. The cause was tried by jury.
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Error to the Ulster C. P. Van Leuven sued Lyke & Dumond before a justice of the peace, and declared in case, for that the defendants’ sow and pigs mangled and'tore a cow and calf of the plaintiff so that they died. Plea, the general issue. The cause was tried by jury. It appeared that the plaintiff and defendants were the owners of adjoining fields, and that the plaintiff’s cow with a calf newly brought forth, were found badly tom and mangled in the plaintiff’s own field, and that they died of those injuries. . Tracks of a hog and pigs were discovered around where the cow lay, and the…
1Opinion of the Court
By the Court, Beardsley, :J.
There was sufficient evidence to warrant the jury in finding that the cow and calf were destroyed by the defendants’ swine. But it was not shown that swine, ordinarily, have a propensity to attack and destroy animals in the condition of this cow and calf; nor was there any evidence that the defendants were aware of the vicious propensity, in this or any other respect,- of these swine. For these reasons the plaintiff wholly failed to show any right of action against the defendants. The scienter is the gist of the action in ¡these cases, and the principle applies to…
2Cited by9 opinions
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- Chunot v. LarsonWisconsin Supreme Court · 1878
- Patee v. AdamsSupreme Court of Kansas · 1887
- Olson v. PedersonSupreme Court of Minnesota · 1939
- Beckett v. BeckettSupreme Court of Missouri · 1871
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