The judgment appealed from awards plaintiff damages in the sum of $150 for the loss of his dog, concededly shot and killed by the defendant. The facts are not in dispute. Defendant was the owner of a certain "game" fowl, both male and female, known as "Heathwood" and "Clayborne" breeds, which he reared upon his own premises for show purposes, production and sale of hatching eggs, and breeding stock. On the day in question plaintiff's dog trespassed upon defendant's premises and killed several of defendant's fowls. Defendant was aroused from his bed by a neighbor and tried without success to chase the dog away. Even when approached with a stick the dog refused to flee, but growled and snarled and continued to destroy defendant's property. Thereupon defendant returned to his house, obtained a gun and shot the dog while it was actually in the act of killing defendant's fowls. Under these circumstances defendant was within his rights at common law in protecting his property upon his own premises, and it cannot be said that he used more force than necessary. Moreover, there is a statute which expressly exempts a person from liability for killing a dog under these circumstances. (Agriculture and Markets Law, §§ 116, 107.) The theory of the Justice of the Peace that birds of this particular type are not "fowls" within the meaning of the statute is without legal sanction. The Legislature has made no distinction between breeds or types. The Commissioner of Agriculture and Markets, after an investigation, has allowed defendant indemnity for the loss of his fowls as a result of the attack by plaintiff's dog. The statute affords defendant absolute immunity from liability for damages. The order and judgment of the County Court and the judgment of the Justice's Court are reversed, on the law and facts, and the complaint dismissed, with costs in all courts. Foster, P.J., Heffernan, Brewster, Bergan and Coon, JJ., concur.