This action was brought to recover damages for personal injuries alleged to have been sustained by Andrew Lagnttuta, an infant nine years of age, from the bite of a vicious dog.
It is averred in the complaint as a cause of action that at the times therein mentioned the defendant Chisolm carried on, or *332caused to be carried on, at the premises therein described a livery and boarding stable for the boarding of horses and storage 'of vehicles that the defendant Wilson was employed by said Chisolm as manager of said stable "and therein was, at all the times mentioned in the complaint, the agent, servant and representative of said defendant Chisolm; that the defendant Chisolm was the owner of and the-defendants both maintained, or caused to be maintained, at and. about said premises, a dog of a ferocious, vicious, mischievous and dangerous disposition and accustomed to attack and bite people, of which the defendants had knowledge, notwithstanding which they wrongfully kept and maintained at large, in and about the premises, and adjacent land used by defendants in said business, said dangerous animal, which they neglected and omitted, contrary to their duty, to have and keep properly confined and chained, thereby creating and maintaining a nuisance; that while lawfully upon the-premises so occupied by the defendants this dog, without any cause- or provocation, suddenly and viciously attacked the plaintiff and severely bit and injured him, scaring and disfiguring him for life, and inflicting other permanent injuries, for which damage is claimed in the sum of $10,000.
The defendant Chisolm by his answer alleges that he leased the-premises to Wilson ; denies the ownership and maintenance or harboring of the dog, knowledge of its vicious propensities and ajl the-material allegations showing liability on his part. The defendant-Wilson also denies all the material allegations of the complaint- tending to establish liability on his part, and both defendants aver that, the plaintiff’s injuries were caused by his own negligence or by the-negligence of third persons over whom the defendants had no control.
At the close of the evidence the court dismissed the complaint as-to both defendants, to which counsel for the plaintiff excepted, and asked to go to the jury upon various questions of fact, viz., as to the-viciousness of the dog; as to whether or not Wilson was in the-employ of Chisolm ; as to whether there was or was not a lease from Chisolm to Wilson; as to whether or not there was warning given to the plaintiff of the character of the dog, such as would defeat his-action ; on the question of contributory negligence, and on the question of damages. These motions were denied, to which ruling coun*333sel for plaintiff took an exception. Motion was then made in behalf of the plaintiff for a new trial, which was also denied, and from the judgment entered and from the order denying the motion for a new trial this appeal is taken.
It is clear beyond dispute that the question of Wilson’s liability ■for the injuries inflicted by the dog presented a question of fact for the jury. The evidence was abundant to show that Wilson was the owner of the dog; that he kept the dog upon the premises, and that the dog had, prior to the time when he bit the plaintiff, bitten one or more other persons. As to Wilson, therefore, there was every element in the case from which the jury would have been authorized to find that he was responsible for injuries inflicted by this dog, unless he was relieved therefrom by the misconduct of the person who received the injury. As to the defendant Chisolm the case is somewhat different. It was conceded that he was the owner of the premises, but the claim was made that he had leased them to Wilson, and that Wilson had sole charge of the premises as lessee, and that Chisolm was not connected therewith, and had no control, either over Wilson or the premises at the time when the dog was kept thereon and when he bit the plaintiff. If this were conclusively •established then it follows that Chisolm was relieved from liability for the act of the dog. The case comes, therefore, to rest in the main upon the question as to whether Wilson was the mere agent .and servant of Chisolm or whether he was the lessee having sole control of the premises. It appears that Chisolm purchased the premises, consisting of a stable, at a foreclosure sale. It is not •claimed that Chisolm ever executed any written lease of the premises to Wilson. The evidence upon the part of the plaintiff tended to establish that after the purchase Wilson took charge of the stable finder an arrangement with Chisolm by which he was to rent stable room to persons desiring such accommodation, collect the moneys therefor and pay the same over to Chisolm, less a certain percentage which he retained as his compensation. At first Wilson was authorized to retain thirty cents on the dollar as his commission, as he •expressed it, and subsequently Chisolm refused to allow that amount and reduced'it. to fifteen cents on the dollar. During the whole period Wilson collected the money and paid it over to Chisolm under this arrangement; and these were the terms _ under which *334Wilson had the custody and control of the premises in question. It is quite evident that upon this testimony the jury would have been authorized to find that Wilson was a mere agent of Chisolm to rent the premises to persons for stabling accommodations, collect the rents and pay them over to Chisolm, and that, in fact, the relation of landlord and tenant did not exist between these parties. If the jury had found such to be the fact, as they might upon the testimony, then it would follow that Wilson’s possession of the property was the possession of Chisolm, and that the former was simply his agent.' Under such circumstances Chisolm would be chargeable with knowledge that the dog was harbored upon the premises and also with knowledge of his vicious propensities if it was found that Wilson possessed such knowledge or that the dog had bitten other people. (Quilty v. Battie, 135 N. Y. 201; Keenan v. Gutta Percha Mfg. Co., 46 Hun, 544; Muller v. McKesson, 73 N. Y. 195.)
It is quite evident that Wilson had notice, at least the jury might so find, that the dog had bitten one or more persons prior to his biting the plaintiff', and he had caused to be put upon the premises a notice to beware of the dog.
If Wilson was Chisolm’s agent his knowledge became that of his principal, and with that relation established as the jury might find it under the evidence, every element would be present charging Chisolm with liability for the injury which the dog inflicted. I am of opinion, therefore, that the plaintiff made a case entitling him to go to the jury as to the liability of both defendants, and upon the questions upon which he requested to go to the jury.
The plaintiff was not chargeable with contributory negligence as matter of law. That also became a question for the jury. (Zwack v. N. Y., L. E. & W. R. R. Co., 160 N. Y. 362; Stone v. Dry Dock, etc., R. R. Co., 115 id. 104.) If the negligence of the parents could be imputed to the child, it was still a question of fact, under all the circumstances of the case, as the jury might well find that in committing the boy to the custody of the driver they were not negligent.
It follows that the judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.
Patterson, J., concurred.