
    Third Appellate Department,
    November Term, 1904.
    Reported 98 App. Div. 590.
    Eliza Westbrook, Respondent, v. Joseph Miller, Appellant.
    Action by a parent to recover damages because of liquor sold to her son under eighteen years of age—What complaint does not state a cause of action at common law or under the Liquor Tax Law.
    The complaint in an action alleged that the plaintiff was the mother oi a boy under eighteen years of age and that the defendant was a dealer in intoxicating liquors; “that within two years next prior to the commencement of this action defendant did wrongfully and unlawfully sell to, give to and permit her said son to have, and to drink and carry away with him in bottles and otherwise, on and from the said premises of defendant Intoxicating liquors, whiskey, wine and beer. That said sales and gifts oi said intoxicants to said minor were at different times, including sales and gifts on Sundays, during said period. That said son lived at home during this period and plaintiff was injured by loss of his services, occasioned by said son spending his time and earnings and forming bad habits in and about the defendant’s said premises buying and receiving said intoxicants from defendant to plaintiff’s damage in the sum of One Thousand Dollars."
    The plaintiff also alleged that whatever cause of action the father of said infant may have had against the defendant because of the facts
    
      alleged has been duly assigned to her. She did not allege that she had sustained any damage by reason of the intoxication of her son.
    
      Held, that the facts stated in the complaint were not sufficient to constitute a cause of action under section 39 of the Liquor Tax Law (Laws ol 1896, chap. 112), authorizing the recovery of damages in a civil action for the selling or giving away of intoxicating liquors under the circumstances mentioned in such section;
    That the complaint did not state a cause of action under section 30 of the Liquor Tax Law (as amended by chap. 312 of the Laws of 1897), which prohibits the sale or gift of liquors to a person under the age of eighteen years, as the violation of that section does not render the offender liable to an action of the nature of the one at bar, but subjects him to civil penalties and criminal punishments which can only be recovered or imposed in the manner provided by the statute;
    That the complaint did not state a cause of action at common law, as the basis of such an action would be the loss of the infant’s services, and it was not alleged that the defendant’s acts had ever prevented the sou from performing such services as the plaintiff" or his father were entitled to require from him.
    Appeal by the defendant, Joseph Miller, from an order of the Supreme Court, made at the Tompkins Trial Term and entered in the office of the clerk of the county of Tompkins on the 12th day of March, 1904, denying the defendant’s motion to dismiss the plaintiff’s complaint.
    The plaintiff in her complaint alleges that she is the mother oi Harry Westbrook, an infant under eighteen years of age) that the defendant is a dealer in intoxicating liquors. She further alleges “ that within two years next prior to the commencement of this action defendant did wrongfully and unlawfully sell to, give to and permit her said son to have, and to drink and carry away with him in bottles and otherwise, on and from the said premises of defendant, intoxicating liquors, whiskey, wine and beer. Thai said sales and gifts of said intoxicants to said minor were at different times, including sales and gifts on Sundays, during said period. That said son lived at home during this period and plaintiff was injured by loss of his services occasioned by said son spending his time and earnings and forming bad habits in and about the defendant’s said premises buying and receiving said intoxicants from defendant to plaintiff’s damage in the sum of One Thousand Dollars.”
    She also alleges that whatever cause of action the father of said infant may have had against the defendant because of the facts alleged has been duly assigned to her.
    
      The defendant’s answer is a general denial. On the trial at the opening of the case the defendant moved on the pleading to dis miss the complaint upon the ground among others that the complaint does not state facts sufficient to constitute a cause of action. The motion was denied and from the order entered therein this appeal is taken.
    
      David M. Deem, for the appellant.
    
      Raymond L. Smith, for the respondent.
   Chase, J.:

The Legislature, in authorizing the recovery ot damages in a civil action, under the Liquor Tax Law, created a cause of action for the protection of the dependent and helpless which was unknown at the common law. (Volans v. Owen, 74 N. Y. 530; Quinlan v. Welch, 141 id. 158.) The right to maintain such an action cannot be extended beyond the terms of the statute construed in view of the evil to be remedied and the object to be attained. The complaint in this action does not allege or claim that the plaintiff has suffered damage by reason of the intoxication of her son. The facts stated in the complaint are not sufficient to constitute a cause of action under section 39 of the Liquor Tax Law (Laws of 1896, chap. 112). We have not had our attention called to any other statute authorizing the recovery of damages in a civil action for selling or giving away intoxicating liquors.

Section 28 of chapter 628 of the Laws of 1857, making any per son, who shall sell strong or spirituous liquors or wines to anj of the individuals to whom it is declared by the act to be unlawful to make such sale, liable for all damages which may be sustained in consequence of such sale to any individual sustaining such injuries (Kilburn v. Coe, 48 How. Pr. 144) was repealed with the. other parts of said act by chapter 401 of the Laws of 1892. There does not seem now to be any similar statutory provision.

Section 30 of said Liquor Tax Law (as amd. by Laws of 1897, chap. 312) prohibits selling or giving away liquors to a person under the age of eighteen years. The act provides penalties and criminal punishment for a violation of the prohibitive provisions of the act. By subdivision 2 of section 34 (as amd. by Laws of 1900, chap. 367) it is provided that any person who shall violate certain provisions of the act, including section 30 thereof, shall be guilty of a misdemeanor, and upon conviction therefor shall be punished by a fine of not more than $500 or by imprisonment in a county jail or penitentiary for a term not more than one year, or by both such fine and imprisonment, and shall forfeit the liquor tax certificate.

By section 42 (as amd. by Laws of 1897, chap. 312) it is further provided that any person who shall violate certain provisions of the act, including section 30 thereof, in addition to the punishment and penalties in the act otherwise imposed and provided, shall be liable for a penalty of fifty dollars for each and every violation, to be recovered by the State Commissioner of Excise in an action brought in his name as such commissioner.

The complaint alleges that the defendant did “ unlawfully sell to, give to and permit her said son to have and to drink and carry away with him in bottles and otherwise, on and from the said premises of defendant, intoxicating liquors, whiskey, wine and beer.” As we have shown, no right of action, except for a penalty as stated, is given by statute for such unlawful sales and gifts. The plaintiff’s action is not authorized by statute and it cannot be maintained by her unless she has sustained an injury recognized by the common law. Loss of services, to which a parent is entitled from a child, is the basis of a cause of action at common law. (Lawyer v. Fritcher, 130 N. Y. 239.) It is not alleged that plaintiff’s son was ever intoxicated or ill or in any way affected so as to interfere with the performance of such services as the plaintiff or his father were entitled to from him. The sales and gifts of liquor are charged as wrongful and unlawful. As plaintiff’s son was under eighteen years of age such sales and gifts were wrongful and unlawful as a matter of law. There are no allegations in the complaint that the defendant wrongfully or unlawfully or otherwise requested, solicited or induced the plaintiff’s son to leave his home and spend his time and earnings at the defendant’s place of business.

The mere fact that a child voluntarily spends some portion of his time at the residence or place of business of another cannot be a sufficient basis for an action by a parent for loss of services and injury to the child’s morals. If the defendant by acts or words solicited and enticed the plaintiff’s son from his home, and deprived his parents either wholly or partially of his services or if special circumstances exist which entitle the plaintiff or- her husband to damages from the defendant, such acts, words or special circumstances should have been alleged in her complaint. If the plaintiff’s claim rests solely upon the alleged fact that intoxicating liquors were sold to the son contrary to the provisions of the Liquor Tax Law, civil penalties and criminal punishment can be recovered or imposed in the manner provided by the statute.

We have not considered the question as to whether the plaintiff during the lifetime of her husband is entitled to maintain this action or the other questions arising herein. For the reasons stated the complaint does not state facts sufficient to constitute a cause of action, and the order should be reversed, with ten dollars costs and disbursements, and the motion to dismiss the plaintiff’s complaint granted.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion to dismiss plaintiff’s complaint granted.  