
    O’ROURKE v. DE GRAW et al.
    (Supreme Court, General Term, Second Department.
    February 13, 1893.)
    Intoxicating Liquors—Civil Damages—Owner of Premises Where Sold. In an action under Laws 1873, c. 646, providing that a person “renting or permitting the occupation of a building or premises, having knowledge that intoxicating'liquors were to be sold therein, ” shall be liable for any damages caused by the intoxication of any person, produced by liquor sold on such premises, it appeared that, when the tenant leased the premises for a restaurant, the owner said he would not “rent his place to sell liquor and beer in,” and the lease was taken with that understanding. There was a bar and its fixtures on the premises, which came from a former tenant. The owner went monthly to collect rent, but never saw any liquor sold, as it was drawn from a faucet under the bar, so as to deceive him. Held, that the owner was not liable.
    Appeal from circuit court, Orange county.
    
      Action by Elizabeth O’Rourke against John De Graw and another for selling liquor to one Patrick O’Rourke, plaintiff’s husband, which caused intoxication alleged to have resulted in his death. Charles Piatt was made a defendant, as the owner of the premises where the intoxicating liquor was sold. From a judgment for plaintiff, defendant Piatt appeals. Reversed.
    Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.
    W. J. Groo, for plaintiff.
    W. F. O’Neill, for defendants.
   BARNARD, P. J.

A recovery was had in the case against the defendant De Graw for creating an intoxication, in whole or in part, which resulted in the death of Patrick O’Rourke in August, 1891. The defendant Piatt was made a defendant, as the owner of the premises where the intoxicating liquors were sold; the allegations against him being that “he rented said building and premises to the defendant De Graw, and permitted him to occupy and use the same during all of said term, as a place for the sale of intoxicating liquors, with the full knowledge that they were to be, and were being, so used.” The court of appeals, in a recent case, has held that the landlord’s liability under chapter 646, Laws 1873, derived from the words creating the liability, and having knowledge that intoxicating liquors are to be sold there, is to be determined by his knowledge at the time the lease was given, and that he could only be made liable when it was shown that he knew, when the lease was executed, that the premises were to be used for the sale of liquor. Hall v. Germain, 131 N. Y. 536, 30 N. E. Rep. 591. Under this rule there was a complete failure of proof against the landlord. De Graw, the tenant, was called by the plaintiff, and testified that the premises were rented by him from Piatt “for a restaurant,” and Piatt “said he would not rent his place to sell liquor and beer in,” and that he took the premises with that understanding. The case against the landlord stood solely on this proof when the plaintiff rested, and the case against him should have been then dismissed. It should have been also dismissed at the close of the evidence. It then appeared that the lease was given upon the condition that it was not to be used to sell strong drink in; that, although the landlord went monthly to collect his rent, he never saw any sale of liquor there; that the bar and its fixtures came from a former tenant; that the beer pump was not used, but the beer sold was drawn from a faucet under the bar, so as to deceive the owner; that the bar appearances would fit the restaurant as well as the ordinary liquor business, and the lease was expressly given upon the assurance that the bar would be kept to sell small and birch beer and cigars. If a liability would be established by knowledge subsequent to the lease that it was being violated, there was an entire absence of proof to show that. The judgment against Piatt should be reversed, and a new trial granted; costs to abide event. All concur. 
      
      Laws 1873, c. 646, provide that “a person * * * renting or permitting the occupation oí a building or premises, having knowledge that intoxicating liquors were to be sold therein, ” shall be liable for any damages caused by the intoxication of any person, produced by liquor sold on such premises.
     