The plaintiff has recovered for injuries sustained when the defendant’s dog jumped upon him and threw him to the ground.
The plaintiff accompanied by two friends and leading his dog on a leash was walking in front of premises occupied by the defendant on the evening of June 25, 1937. The defendant’s dog, a St. Bernard of prodigious size, -was lying unleashed in front of the steps of a house occupied by the defendant, set back a distance of about thirty-five feet from the street. Suddenly the defendant’s dog, moved by some secret impulse, rushed from his position at the steps and, leaping on the plaintiff, threw him to the ground. Although not muzzled at the time, the dog did not bite the plaintiff. The plaintiff offered no evidence tending to establish any previous acts disclosing vicious propensities on the part of the dog. The defendant rested at the conclusion of the plaintiff’s case, at which time his motion to dismiss the complaint on the ground that no cause of action had been established was denied.
The legal principles which control the liability of the owner of a domestic animal are established by many authoritative decisions. Although the doctrine that every dog is entitled to *761“ one free bite,” if it ever prevailed in this State, is no longer followed (Muller v. McKesson, 73 N. Y. 195; Quilty v. Battie, 135 id. 201), the owner “ is not responsible for such injury unless the vicious propensities of the animal are known to him or by the exercise of reasonable care the same could have been ascertained.” (Hosmer v. Carney, 228 N. Y. 73.) Similarly, in Leonard v. Donoghue (87 App. Div. 104), it was held that the owner was not liable for injuries inflicted by his dog even though permitted to run at large on the public highway. To the same effect are Prince v. Fried (194 App. Div. 282); Benoit v. Troy & Lansing-burgh R. R. Co. (154 N. Y. 223). In the absence, therefore, of evidence that the dog had previously manifested vicious propensities the question of the defendant’s liability should not have been submitted to the jury.
The great size of the dog does not affect the question of the defendant’s liability. Notwithstanding his size he remained of a species which the law, guided by experience, has always regarded as the friend and companion of man. It would be unreasonable and inexpedient to hold that dogs are vicious or dangerous in proportion to their size. The owner, whether the dog be large or small, is justified in assuming that he will not inflict injury upon others unless his previous behavior gives some evidence of vicious tendencies. It would also be unfortunate if owners of dogs who, particularly in the rural sections of the State, must frequently maintain them to guard their property or perform other necessary services, were subjected to the liability of an insurer should a dog, always believed to be gentle, unexpectedly inflict injury on persons or property.
The plaintiff contends that the defendant’s failure to comply with section 17 of the Sanitary Code of the City of New York requiring dogs to be “ muzzled or restrained by a chain or leash ” on public highways in the city of New York would have justified the jury in holding the defendant liable. By the ordinance the defendant was not required to keep his dog leashed but could allow it to remain at large provided it was muzzled. We think, therefore, the trial judge correctly held that the defendant’s violation of the ordinance in failing to muzzle his dog did not contribute to the plaintiff’s injury. If the plaintiff had been bitten by the defendant’s dog the violation of the ordinance would, no doubt, have constituted ;prima fade evidence of negligence having a causal relation to the injury. (Martin v. Herzog, 228 N. Y. 164; Carlock v. Westchester Lighting Co., 268 id. 345.) But since the plaintiff was not bitten but was thrown to the ground, the fact that the dog was not muzzled is without significance since compliance with the ordinance *762would not have prevented the accident, if the occurrence may be so described. In so holding we have assumed, without deciding, that the court could take judicial notice of the ordinance even though it was not offered in evidence.
The judgment should be reversed, with costs, and the complaint dismissed, with costs.
Martin, P. J., Townley and Cohn, JJ., concur; Dore, J., dissents and votes to affirm.