Conklin v. Tice — 15 N.Y. St. Rep. 835

Majority

p. 835

Bridget Conklin, Resp’t, v. William H. Tice, App’lt.

(Supreme Court, General Term, Second Department,

Filed May 14, 1888.)

Headnote

Civil damage act, chap. 646, Laws 1873—Liability op landlord.

The lessor of a building used for a place in which to sell intoxicatin g liquor is liable for damages under the civil damage act as well as the lessee if he leased the place for this purpose or knew that it was so to be used.

Appeal from a judgment in favor of plaintiff for $3,657.50 entered upon a verdict of a jury at Westchester county circuit from an order denying motion for a new trial made upon the minutes of the justice before whom the action was tried. The action was brought in behalf of the plaintiff as indorser of one James A. Conklin, who is alleged to have been killed by being thrown from a wagon, the team of which he was driving, under the provisions of the so-called civil damage act, chapter 646, Laws 1873,

A. H. Gleason, for app’lt; Charles Harris, for resp’t.

—The plaintiff is the widow of James H. Conklin. The defendant is the owner of premises in Westchester county kept as a hotel by one Mercer, the defendant lessee. The cause of action is based upon allegations that the plaintiff’s husband was made intoxicated from strong drink furnished him by Mercer at this house. That thereby he lost control of his judgment and self control, and drove his team so recklessly and so imprudently as to upset his wagon and break his own neck in the overthrow of the conveyance. That the defendant leased the hotel with full knowledge that intoxicating liquor was to be sold there. The plaintiff’s position is undisputed. She is thirty-four years of age, has a child under four years of age, and is left wholly dependent upon her own labor. Her deceased husband was a farm laborer. The proof was full and explicit as to the furnishing by Mercer of the intoxicating drink to the deceased.

On the 21st of March, 1887, the deceased went to the hotel kept by Mercer to put up an auction bill. He did so

p. 836

by Mercer’s permission and then asked him for whiskey. It was furnished. “He drank two or three times certain,” says his companion, one Smith;"“whiskey every time.”

The.deceased and Smith got into the wagon. Smith drove so madly and furiously whipping his horses so that they were urged to such a rate of speed that in turning a corner in the road the wagon upset and the plaintiff’s husband was killed. The case falls within the principle established in Mead v. Stratton ( 87 N. Y., 493 ), if the cause of action was brought against Mercer.

If an action will lie against Mercer, it will lie also against the owner of the building if he leased it for the purpose of the sale of intoxicating liquors,' or knew of such intended sale therein. The proof to show that the defendant knew that the place was to be used for the sale of intoxicating liquors there, is sufficient. One Palmer had kept a hotel in it for two years previous to Mercer as defendant’s tenant. Towards the end of the lease, in February or March, 1886, the defendant refused to continue Palmer at $200 a year. He told Palmer he had been offered more; that the applicant intended to keep a hotel and could get a Ecense by reason of his friendship of a high county official. When the hotel was being fitted up for the incoming tenant the defendant was several times about the hotel, and his son also. He was in the habit of going to the hotel sometimes two or three times a week. There was a regular bar room, and every one got strong drink who asked for it. Under this proof the jury could find a leasing by defendant to Mercer for the purpose of the sale of intoxicating liquors, and a knowledge that the place was actually used by him as a place where intoxicating liquors were actually sold. No point is taken against the amount awarded as damages by the jury. The proof sustains their estimate. As has been stated, the plaintiff is thirty-four years old, and has a very young child to support. She has nothing. Her husband was an industrious “good working man,” he was “fair and honest.” When he lost his Efe he was working a farm on shares, putting his labor against the land. He left the plaintiff almost if not entirely destitute. He was about forty years of age. The verdict of $3,500, under the proof, seems to be moderate and equitable.

The judgment should therefore be affirmed, with costs.

Pratt, J., concurs; Dyioian, J., not sitting.