Cronin v. Gundy, 16 Hun, 520 Penalty action for selling liquor without a license. Defendant held not to be protected by license issued in part by one who was elected to the office of excise commissioner to fill a supposed vacancy on account of a previously elected commissioner's failure to have his bond approved by supervisor within fifteen days after election. Forfeiture of the office not occasioned ipso facto by failure to do so-only after legal proceedings declaring it. Cited, Horton v. Parsons, 37 Hun, 42 Cronin v. Stoddard, 97 N. Y. 271 A license issued by one of three regularly elected excise commissioners and by one who succeeded another such commissioner, who had neglected to give a bond, afforded no protection and was no defense to a penalty action for sale without license, because the failure to file a bond did not create a vacancy in the office-only cause for removal which was not acted upon. Cited, People v. McDowell, 70 Hun, 1 Peo. ex rel. Brooks v. Watts, 73 Hun, 404 Cuniff v. Beecher, 84 Hun, 137 Magistrate before whom a person has been found guilty of disorderly conduct (intoxicated) under L. 1892, ch. 401, sec. 35, may suspend sentence during good behavior. But such suspension of sentence does not alter the fact of conviction and a civil action for false imprisonment of such person cannot be sustained. Davis v. Standish, 26 Hun, 608 Civil damage suit by wife whose means of support were injured by intoxication of husband while fishing, which resulted in his death by drowning. Intoxication caused in whole or in part which renders one incapable of caring for himself and of protecting himself from the results of accidents or circumstances to which he was subjected by reason of which death follows, is the direct and proximate cause. If the liquor was sold without a license the fact might be considered as a basis for exemplary damages. Cited, Reid v. Terwilliger, 116 N. Y. 530 Rawlins v. Vidvard, 34 Hun, 205 Devoe v. Van Vranken, 29 Hun, 201 In a suit for damages occasioned plaintiff by defendant's excavations in a highway, where plaintiff had testified that his injuries made it impossible for him to work as before, it is competent proof in mitigation of damages that from constitutional condition or the excessive use of intoxicating liquors he had long been unqualified to do a full day's work. Doorley v. McConnell, 78 Hun, 580 Violation by her grantor of covenants not to use premises for liquor traffic affords no ground for ejectment proceedings against grantee. Driscoll v. Schultz, 31 How. Pr. 343 Constitutionality of Metropolitan Police Bill denied. Dubois v. Miller, 5 Hun, 332 Civil Damage Act constitutional. License no protection, but evidence of sales prior to enactment of statute improper. Cited, Volans v. Owen, 9 Hun, 558 Mead v. Stratton, 87 N. Y. 493 Quain v. Russell, 8 Hun, 319 Dudley v. Parker, 132 N. Y. 386, affirming 55 Hun, 29 Liability under Civil Damage Act, L. 1873, ch. 646, dependent upon intoxication as the proximate cause of injury. "The purpose of this statute was to place the responsibility for the injurious consequences to others than the intoxicated person, upon those who furnish the liquor which produced the intoxication of the person, by whom, while in and by reason of that condition or in consequence of it, the injury should be caused or suffered. The obligation is one of the incidents imposed by statute upon the liquor traffic. The question, when it arises, is not one of care or diligence on the part of the seller, but is simply one of cause and effect." Dudley v. Parker, 55 Hun, 29, affirmed, 132 N. Y. 386 Liability under civil damage action for damages resulting from intoxication not of a person to whom liquors were directly sold, but for whom they were purchased and the dealer had reason to believe that some other person than the one to whom the same were delivered was interested in the purchase and was to drink the same in whole or in part. Dupuy v. Cook, 90 Hun, 43 Test of injury under Civil Damage Act is not whether mother by utmost effort could just earn her living, and the fact that her son voluntarily supported her does not affect her right of action. Dupuy v. Quinn, 61 Hun, 237 A juror's prejudice against liquor selling does not disqualify him from sitting in a case arising under Civil Damage Act, provided he is indifferent between the parties and could render an impartial verdict irrespective of what he thought of the business. Cited, Fortune v. Trainor, 19 N. Y. Supp. 598 Elliot v. Barry, 34 Hun, 129 When defendant in civil damage suit allowed her husband to use her saloon property under his license, the fact of her ownership does not necessarily establish her connection with the business. That question should be submitted to the jury. Ennis v. Brown, 1 App. Div. 22 Covenants not to use premises for inn or hotel do not run with the land. Ex parte Persons, 1 Hill, 655 Excise board not compelled by mandamus to issue license withheld because it considered liquor traffic a public evil. Cited, Peo. ex rel. Beller v. Wright, 3 Hun, 306 In re Bloomingdale, 38 N. Y. Supp. 162 People v. Norton, 7 Barb. 477 Kelley v. Excise Commissioners, 54 How. Pr. 327 Mayor v. Mason, 4 E. D. S. Rep. 142 Fincke v. Police Commissioners, 66 How. Pr. 318 Did the conviction of a bartender at licensed premises forfeit the license ipso facto under the Law of 1873? If the record of conviction does not show that the violation occurred at the licensed premises how can that information be supplied? Injunction will not lie to restrain an illegal arrest because the law affords an adequate remedy. Cited, Kenny v. Martin, 11 Misc. 652 Fitch v. Casler, 17 Hun, 126 Persons attending "Fourth of July party" at a hotel upon invitation of keeper, certain accommodations being furnished for a sum, are not "guests" of the hotel and the keeper is not liable for injuries to plaintiff's horse in the latter's care. "It is not the amount of refreshments but the character under which the purchaser buys them which determines the relations of the parties." Cited, People v. Brede, April 1897, unreported Ford v. Ames, 36 Hun, 571 Complaint under Civil Damage Act sufficient, where it was alleged that the intoxication from which damage resulted " was caused in whole or in part by intoxicating liquors sold or given away by the said Ames, his agents or servants at and upon said place," there being no allegation that such liquors were sold or given away to Ford. Held sufficient. Franklin v. Schermerhorn, 8 Hun, 112 Civil damage suit. Reaffirmance of its constitutionality as a part of statute declared so by Metropolitan Board of Excise v. Barrie, 34 N. Y. 657, making every person taking a license personally responsible for the consequences involved in the sale of liquors. Statute gives as many rights of action as there are persons injured, but a wife may recover only her own share of money lost through her husband's intoxication, not her children's share also. Excessive verdict. Case where party was not intoxicated solely by liquor sold by defendant. Volans v. Owen, 9 Hun, 558 Reid v. Terwilliger, 116 N. Y. 530 Rawlins v. Vidvard, 34 Hun, 205 Furman v. Knapp, 19 Johns. 248 Conflict between charter of New York City allowing mayor to license, and State Excise Law requiring license of Excise Commissioners. Both licenses necessary. Goodwin v. Young, 34 Hun, 252 Civil Damage Act held not to authorize a recovery for injuries done in Vermont as a result of intoxication from liquors purchased in this State. Goram v. Cable, 17 N. Y. Supp. 662 Court not able to say as a Latter of law that two men who have drunk a pint of whiskey in one day are intoxicated. Griffith v. Wells, 3 Den. 226 One who sells liquor without license cannot recover against purchaser. Excise Law does not have revenue for its sole purpose, because it forbids certain persons from trafficking in liquor, requires all to give a bond, etc., with a view of preventing some of the evils which are so likely to flow from the traffic in spirituous liquors. Cited, People v. Behan, 17 N. Y. 516 Smith v. Joyce, 12 Barb. 21 Turck v. Richmond, 13 Barb. 533 Hall v. Germain, 14 N. Y. Supp. 5, affirmed, 131 N. Y. 536 "A principal is always answerable civilly for the acts of the agent done within the scope of his authority." Landlord liable under Civil Damage Act if his agent leased the premises for the liquor traffic. Cited, Comstock v. Hopkins, 61 Hun, 189 Hall v. Germain, 131 N. Y. 536, affirming 14 N. Y. Supp. 5 Landlord's liability under Civil Damage Act, L. 1873, ch. 646. Renting agent's notice of use of premises imputable to landlord. The liquor sold must nave contributed in an appreciable degree to the intoxication which resulted in the injury complained of. Cited, O'Rourke v. Platt, 67 Hun, 71 Hall v. McKechnie, 22 Barb. 244 Penalty action for four penalties in justices court against a firm for selling liquor without license. Held, to be joint liability for sales by their clerks when they were in the store in like manner as if they had personally sold. Hasbrouck v. Weaver, 10 Johns. 247 Husband answerable for a forfeiture in a civil suit under a penal statute (1 R. S. 680, sec. 15) incurred by his wife who sold liquor in his house without license while he was absent and without his consent. Cited, Board of Excise Commissioners v. Dougherty, 55 Barb. 332 Hayes v. Phelan, 4 Hun, 733, corrected, 5 Hun, 335 Civil Damage Act is constitutional. Plaintiff as the wife of deceased person claimed damages "in being deprived of the companionship of her husband and of the customary support and maintenance of herself and children" where death resulted from intoxication. Here declared that no right of recovery exists against the vendor of the liquors producing the intoxication unless a similar right existed against the person intoxicated on account of some injury to person or property, the statute only intending to throw responsibility for injurious acts of intoxicated person on vendor of liquors. Also that the death of husband injures a wife's means of support, the loss being without injury. Cited, Dubois v. Miller, 5 Hun, 332 Jackson v. Brookins, 5 Hun, 530 Smith v. Reynolds, 8 Hun, 128 Volans v. Owen, 9 Hun, 558 Hess v. Appell, 62 How. Pr. 313 Under L. 1857, when overseers of poor did not prosecute within ten days a complaint accompanied by reasonable proof, the complainant could commence penalty actions. Held that when non-resident complainant filed complaint of such a general character and against so many places, supported only by the statements of witnesses whose occupation, place of business or residence is not disclosed, the overseers of the poor were not required to act, regardless of what motives or impulses actuated the complaint, etc., etc. Hill v. Berry, 75 N. Y. 229 Liability under Civil Damage Act for damages to wife resulting from husband's intoxication itself. Cited, Neu v. McKechnie, 95 N. Y. 632 Hill v. Board of Supervisors, 53 Hun, 194 Liquor dealer who gives liquor to persons, who subsequently and consequently play "rough house" with his premises, not entitled to recover under act to provide compensation for destruction of property by mob. Horton v. Carrington, 1 How. Pr. (N. S.) 124 Sale of liquors compounded with other substances. That same were sold without license at a place not described in the complaint is immaterial where the defendant is not misled. Horton v. Parsons, 40 Hun, 224 Penalty action for sale of liquors without a license under the statute L. 1857, ch. 628, section 13-a sale was requisite to a cause of action. "The defendant was a practicing physician and surgeon, and the evidence tends to prove that he kept whiskey and other liquors in his drug store 'for the purpose of preparing and compounding medicines.' This he had the right to do in a proper manner." When a party keeps liquor for sale, and upon request delivers without qualification liquor called for, a sale will be presumed with an implied promise to pay, but in the absence of proof that the defendant kept liquor for sale, such presumption will not prevail and proof of intent to sell must be shown. "There may and may not have been a sale, and to constitute it required an agreement express or implied. Without the element of sale in the transaction, the act of the defendant in letting the person who obtained the liquor have it, was, in the legal sense and for the purposes of this action innocent." |