Kniskern v. Baker

¶1Appeal by defendant from a judgment of the County Court of Schoharie County in favor of plaintiff, entered upon a decision of the County Judge after a trial de nova upon an appeal from a judgment in favor of plaintiff entered in Justice’s Court in the Town of Fulton upon the verdict of a jury. The complaint charges violations of section 95 of the Agriculture and *569Markets Law. in that defendant permitted one or more of his Holstein bulls to run at large on plaintiff’s lands in each of three years and to impregnate plaintiff’s cows. It was proved, without contradiction, that the latter were purebred Guernsey cows and that by reason of their breeding to defendant’s Holstein bull or bulls, plaintiff was damaged in the amount of $400. The pleaded violations of section 95 were abundantly proven. Appellant contends that under the second paragraph of that section plaintiff was required to prove that the bulls did not come upon his lands by reason of a defective fence which it was his duty to repair. (See Town Law, § 300.) Whether or not that burden was upon the plaintiff, there is, in any event, no contention that the 90% of the division fence which plaintiff maintained was less than his fair proportion or was in disrepair. It would seem highly unreasonable to hold that instead of that fence plaintiff was required to construct the mile-long barrier of posts and planks which the testimony indicated would he necessary to confine defendant’s bulls on defendant’s lands, particularly in view of the testimony that it was not customary in the neighborhood to pasture grown bulls. On the record, we are unable to hold, as appellant urges, that the trial court erred in finding plaintiff qualified to testify as his own expert witness as to damage and in thereupon accepting his testimony as to amount. Defendant did not seek to refute the testimony nor even to cross-examine plaintiff as to the basis of his computation. Judgment unanimously affirmed, with costs to respondent. Present — Bergan, J. P., Coon, Gibson, Herlihy and Reynolds, JJ.