(dissenting). Subdivision 3 of section 10 of the Sanitary Code of the City of New York provides that any dog which has bitten persons on three separate occasions where the bite requires medical treatment shall be surrendered to the department of health and destroyed.
Petitioner concedes that her dog on two different occasions bit two adults whose wounds were treated at Morrisania Hospital. Notwithstanding that the records of the same hospital show that on another date the same dog bit a fourteen-year-old boy on the right hand and that this wound was cauterized by a physician at the hospital, petitioner claims that her application was improperly denied because two persons submitted affidavits sworn to almost a year after the attack that the boy was not bitten but was only clawed by the dog.
The order of the Special Term denying petitioner’s application for an order prohibiting the destruction of the dog was proper and should be affirmed.
Breitel, Bastow, Botein and Bergan, JJ., concur in decision; Cohn, J. P., dissents and votes to affirm, in opinion.
Order reversed and the proceeding remitted to the respondents for a hearing. Upon this record it does not appear that the dog had bitten “ a person or various persons on three (3) separate occasions” as provided in subdivision 3 of section 10 of the Sanitary Code. Settle order on notice.