Opinion
Argued March 21, 1966
Decided March 31, 1966
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, E. HOWARD RINGROSE, J.
Edward F. McLaughlin for Jane M. Collis and another, appellants.
Eugene P. Hubbard for Janet M. MacCallum, appellant.
Salvador J. Capecelatro, Jr., and Shaw J. Dallal for respondents.
Order affirmed, with costs; no opinion.
Concur: Chief Judge DESMOND and Judges FULD, BURKE and KEATING. Judges VAN VOORHIS, SCILEPPI and BERGAN dissent and vote to reverse and to dismiss the complaint as to defendant MacCallum upon the ground that there was no evidence of scienter of any propensity in this horse calling upon defendant MacCallum to take more than ordinary care in the confinement of horses ( Benoit v. Troy Lansingburgh R.R. Co., 154 N.Y. 223; Van Leuven v. Lyke, 1 N.Y. 515; Brown v. Willard, 278 App. Div. 728, affd. 303 N.Y. 727).