Austin v. Carswell — 50 N.Y. St. Rep. 844

Majority

p. 844

Charles W. Austin, Overseer, App'lt, v. Sarah A. Carswell,. Resp't.

(Supreme Court, General Term, Third Department,

Filed February 15, 1893.)

Headnote

1. Excise—Evidence.

In an action to recover penalties for the sale of liquor without a license, evidence that the defendant has been arrested and fined for similar offenses is irrelevant, and the admission of such evidence is not cured by a charge that whether there had been criminal prosecutions for offenses of this nature, was no concern of the jury.

2. Same.

Notwithstanding such charge the plaintiff is entitled, on request, to a. charge that a defendant may be liable civilly, although she may have been prosecuted criminally for the same offense.

Appeal from judgment of the Washington county court, entered upon verdict of no cause of action, on appeal from judgment of justice’s court in favor of plaintiff.

Action to recover penalties for sales of liquor without a license-on the 17th and 19th days of October, 1891.

On the trial, defendant was permitted to testify that she had been refused a license, and had afterward been indicted and taken to-Sandy Hill in September, and fined $100, and that on her return she told her barkeeper not to sell any more intoxicating liquors-under any circumstances.

I). M. Westfall, for app’lt;

John K. Larmon (James H. Ryan, of counsel), for resp’t.

I think an error was committed upon the trial, in-overruling plaintiff’s objections to the evidence offered by defendant to show that she had been taken to Sandy Hill and fined $100. This evidence was irrelevant to the' case on trial, and may have-had some influence upon the jury. It is held that illegal evidence, tending to excite the passions, arouse the prejudices, awaken the-sympathies or influence the judgment of jurors may not be considered harmless. Hutchins v. Hutchins, 98 N. Y., 56 .

Although this evidence was improperly received, the error could have been cured had the court afterwards struck out such evidence or directed the jury to disregard it. The remark of the judge, that, “ whether there have been prosecutions of criminal nature for offenses of this nature, or not, * * * is no concern of yours,” cannot be deemed a striking out of the evidence in question, or a direction to the jury to disregard it.

To remedy an erroneous reception of evidence, it must be plainly stricken out or the jury must be distinctly told to disregard it. The above quoted instruction of the trial judge is am7 biguous, and does- not come up to this requirement. Again, the-judge was requested to charge that defendant may be liable civ

p. 845

illy, although she may have been prosecuted criminally for the same offense. He declined to so charge on the ground that he had already charged on that point. I am unable to discover that he had charged in that regard. I think plaintiff was entitled to have the instructions requested given to the jury. For this error there should be a new trial.

It is, therefore, unnecessary to consider other exceptions, or whether the charge of the trial judge to the effect that if Roach made the sales of liquor shown on the trial without the knowledge or consent and against the instructions of defendant, she was not liable, is correct or not. It was shown that defendant was proprietor of the hotel, and that Roach, at the time of such sales, was her bar-tender. He testified that the receipts for all sales of liquor were passed over to defendant Under such circumstances, there are authorities holding defendant liable, although Roach had sold the liquor against her. express directions. 3rd vol. Am. & Eng. Ency. of Law, 258; Smith v. Reynolds, 8 Hun, 128 ; Keedy v. Howe, 72 Ill., 133 ; George v. Gobey, 128 Mass., 289 , and see Amerman v. Kall, 34 Hun, 127 ; 47 Alb. Law Journal, 35, 36.

Without passing upon this point, however, and for the reasons above stated, I think the judgment should be reversed and a new trial granted, costs to abide the event.

Mayham, P. J., and Herrick, J., concur.