Wilbur v. Hubbard

By the Court, Balcom, P. J. The most material question in this case is whether the defendant’s dog was one of the two that wounded and killed the plaintiff’s sheep. The sheep were wounded and killed in the night of the 8th of August, 1860; and there is some evidence that the defendant’s dog was not at home that night, and that it was a “sheep killing dog.” Borne of the witnesses said the defendant’s dog had a “very coarse voicethat they could identify it hy its hark, and heard the harking of a dog in the lot where the sheep were the night they were wounded and killed, which they thought was that of the defendant’s dog. But none of them saw the dog that night in such lot. I think it possible for persons to identify a dog hy merely hearing it hark, without seeing it. Some persons have such peculiar voices they can he identified hy acquaintances, who hear them talk, without seeing them; and it seems reasonable that some dogs may hark in such a manner, and have such singular voices, that they can he identified in the night time hy persons who know them well, hy merely hearing them hark, without seeing them. 'If I am right in this conclusion, the question whether the witnesses satisfactorily identified the defendant’s dog as one of the two that were in the lot where the sheep were, the night they were wounded and killed and actually did the mischief complained of, was for the jury to determine. (18 Wend. 141.) If the defendant’s dog was one of the two that did the damage in question, the other was smaller than he; and the jury had the right to gay that the smaller one did not do as [305] much of the damage as the larger one. The entire damage was $19; and' the fact may be that the smaller dog only did $7 of it. It cannot be shown that the jury erred on this question. [Broome General Term, November 19, 1861. I cannot see as the justice committed any error affecting the merits of the case, prejudicial to the defendant. My conclusion is, that the county court did right in affirming the judgment of the justice. Judgment affirmed. Balcom, Campbell and Parker, Justices.]