
    Morenus et al. v. Crawford.
    
      (Supreme Court, General Term, Fourth Department.
    
    January, 1889.)
    1. Intoxicating Liquors—Civil Damage Laws—Several Judgment.
    Code Civil Proo. N. Y. § 456, provides that where process is served on two or more defendants, who are severally liable, plaintiff may take judgment against any one or more of them of whom he could have recovered if he had sued him or them separately. Section 1205 allows a court in its discretion to render judgment against one or more defendants where two or more are sued, if a several judgment is proper, and to direct a severance, and further proceedings against the other defendants. An action under the “civil damage act” against two liquor sellers, unconnected with each other, was discontinued by plaintiff as to one. Held, that although the complaint had not been amended so as to charge a several liability against the remaining defendant, a several judgment could be rendered.
    2. Same—Evidence to Suotain Verdict.
    Under said sections it is immaterial that the complaint alleges that defendants conspired to sell plaintiff’s husband liquor, which would charge a cause of action at common law instead of under the “civil damage act, ” for, after the discontinuance as to one defendant, the action became as if originally brought against but one, and the complaint will be sustained by evidence of damage sustained by the acts of one.
    
      8. Same—Abatement and Revival.
    Under Code Civil Proo. § 3343, subd. 10, providing that an injury to property is an actionable act whereby the estate of another is lessened, and 2 Rev. St. p. 447, § 1, which provides that for wrongs done to the property of another, for which an action may be maintained by the injured party against the wrong-doer, an action may be brought by the personal representative of the former after his death, an action by a wife under the “civil damage act” for the value of a horse killed by her husband while in a state of intoxication produced by liquor furnished by defendant may be revived and prosecuted in the name of plaintiff’s administrator after her death.
    4. Same—Impeachment of Witness.
    In such an action, proof that defendant several times, both before and since the cause of action arose, had been convicted of selling liquor without license, is admissible for the purpose of affecting the weight of his testimony.
    5. Same—Sufficiency of Evidence.
    The plaintiff’s husband having testified that he purchased liquor of defendant, and drank some of it in the presence of defendant, on the day the horse was killed, which was corroborated by others who drank with him, and there being evidence that defendant had admitted that he did sell it, a verdict for plaintiff is supported by the testimony, though defendant states that he did not sell the liquor, and others testify that plaintiff’s husband had told them that he got nothing but cider of defendant on the day mentioned.
    Appeal from circuit court, Broome county.
    Action by Lenora Morenus against Ira Crawford and FTehemiah Hoag, to recover the value of a horse killed by John Morenus, plaintiff’s husband, in May, 1875, while in a state of intoxication caused by liquor sold him by defendants. After a trial and a judgment for plaintiff, which was reversed on appeal, plaintiff discontinued as to defendant Hoag. A second judgment for plaintiff was also reversed, and in January, 1886, plaintiff having died, her administrators, John P. Morenus and Robert II. Glover, were substituted, and' a third trial resulted in a verdict and judgment for plaintiff, from which and from orders respectively allowing the revival in the names of the administrators and denying a motion for a new trial defendant appeals. Code Civil Proc. Fi. Y. § 456, provides that where process is served on all the defendants in an action where they are alleged to'be severally liable the plaintiff may take judgment against one or more of them, if he would have been entitled to such judgment if the action had been brought against such defendant or defendants alone. Section 1205 provides that where an action is against two or more defendants, and a several judgment is proper, the court may, in its discretion, allow judgment against one or more of the defendants, and direct that the action be severed, whereupon further proceedings may be had against the others as the only defendants therein.
    Argued before Follett, P. J., and Kennedy, J.
    
      Alexander Cumming, for appellant. F. P. Lewis, for respondents.
   Follett, P. J.

The uncontroverted evidence shows that plaintiff’s intestate, a married woman, was injured in property by an intoxicated person, or in consequence of the intoxication of. her husband. She was within the class of persons authorized to maintain actions under the civil damage act. The appellant asks for a reversal of the judgment upon five grounds, which wilíbe considered in the order in which they are discussed in his brief.

“(1) The complaint will not sustain a several judgment.” When this action was discontinued against Hoag and continued against Crawford, by leave of the court, it became simply an action against him, to be prosecuted and determined as though originally brought against Crawford alone. When this case was last before the general term, (31 Hun, 85, mem.,) this question was discussed; Bocees, J., speaking for the court, saying: “The complaint was dismissed as to one of the defendants, leaving the action to proceed against the other. ” In this there was no error. It was held in McIntosh v. Ensign, 28 N. Y. 169, that “a plaintiff is not now to be nonsuited because he has brought too many parties into court. If he could recover against any of the defendants upon the facts proved had he sued them alone, a recovery against them will be proper, although he may have joined others with them in the action, against whom no liability is shown.” Code Civil Proc. §§ 456, 1205; Harrington v. Higham, 15 Barb. 524; Parker v. Jackson, 16 Barb. 33. The rule is the same whether the action be on contract or in tort. Grover, J., says, in Roberts v. Johnson, 58 N. Y. 613, 616: “The action was for a tort. In such cases the plaintiff may proceed against any one, all, or such number of the wrong-doers as he may choose. ” So here the plaintiff might, as he did do in effect, consent to the dismissal of the complaint as against Hoag, and proceed against Crawford. If necessary to amend the complaint, it might be so ordered, and it would be so ordered on appeal, if necessary to sustain a just cause of action, as shown by the proof. The variance between the pleadings and proof as to the defendant Crawford was, however, quite immaterial. It in no way affected the merits of the case. We are of the opinion that the court committed no error in permitting the case to proceed against Crawford alone. Again, the order permitting the action to be discontinued as to Hehemiah Hoag and continued against Ira Crawford alone has not been appealed from. We are of the opinion that the complaint is sufficient to sustain the verdict and the judgment entered thereon.

“ (2) The verdict is not sustained by the evidence. ” Under this point the appellant insists that the allegation in the complaint that the defendants wrongfully conspired and intended to injure the plaintiff by selling and giving intoxicating liquors to her husband takes the case out of the civil damage act, and avers a good cause of action at common law. Beading this paragraph by itself, it is capable of that construction. But this action has been discontinued against one of the defendants, and its form and the legal effect of the complaint have been radically changed by the order. The second proposition is the first proposition stated in a different form, and the judgment of the general term of the Third department in this action, from which we have quoted, is a sufficient answer.

“(3) The cause of action did not survive plaintiff’s death.” In Hegerich v. Keddie, 99 N. Y 258, 1 N. E. Rep. 787, an action begun under section 1902 of the Code of Civil Procedure by the representative of a decedent against a person who negligently caused the death of the decedent, was held to be abated by the death of the wrong-doer, and could not be revived and prosecuted against the representative of the wrong-doer. Upon this authority it was held (Moriorty v. Bartlett, 99 N. Y. 651, 1 N. E. Rep. 794, reversing 34 Hun, 272) that an action begun under the civil damage act by a widow to recover for an injury to her means of support, against a person who had sold intoxicants to her husband, who drank them, became intoxicated, and by reason thereof was drowned, was abated by the death of the defendant, and that it could not be revived and prosecuted against his representatix'e. In the case at bar the plaintiff’s intestate lost an article of personal property, which diminished her estate, for which she had a right of action (under the evidence in this case) against her husband, (Howland v. Howland, 20 Hun, 472,) and had such an action been brought it would not have been abated by her death. The civil damage act extends the liability to a person who contributed to the loss by doing a certain specified act. “An injury to property is an actionable act whereby the estate of another is lessened.” Code Civil Proc. § 3343, subd. 10. Under this definition this action is for the recovery of damages for an injury to the plaintiff's property, and is saved by the Bevised Statutes, which provide: “Section 1. Por wrongs done to the property, rights, or interests of another, for which an action might b°e maintained against the wrong-doer, such action may be brought by the person injured, or, after his death, by his executors or administrators, against such wrong-doer, and, after his death, against bis executors or administrators, in the same manner and with the like effect in all respects as actions founded upon contracts. Sec. 2. But the preceding section shall not extend to actions for slander, for libel, or to actions of assault and battery, or false imprisonment, nor to actions on the case for injuries to the person of the plaintiff, or to the person of the testator or intestate of,any executor or administrator.” 2 Rev. St. 447. In Cregin v. Railroad Co., 75 N. Y. 192, Judge Rapallo, in discussing the above section said: “Section 1 preserves from abatement by death, actions ‘ for wrongs done to the property, rights, or interests of another.’ This language'is very broad, and embraces a large class of actions. It is not confined to direct injuries to property, but includes all injuries to the rights or interests of a deceased party, except such as are enumerated and exempted in the following section, Ho. 2. These are actions for slander, libel, assault and battery, false imprisonment, and actions on the case for injuries to the person of the plaintiff. These exceptions necessarily prevent the surviving of any action for slander, libel, assault and battery, or false imprisonment, or for any injury to the person of any deceased plaintiff, however seriously such injury may have affected his property or estate. But they do not cover an action for a wrong done to his rights or interests, even though this wrong may have been effected by means of an injury to the person, provided the injury was not to the person of the plaintiff, but of some other party.” The doctrine of this case was reaffirmed by the court of appeals when the case was again before that court. 83 N. Y. 595. In Hegerich v. Keddie, supra, Chief Judge Ruger said: “If the language of the statute applicable to this case be collocated and read according to its plain meaning and intent, the following sentence would seem to be the result: Actions by and against executors and administrators for wrongs done to the property, rights, or interests of their intestate or testator are hereby authorized, but, so far as such wrongs have heretofore been remediable by actions of the case for injuries to the person of the plaintiff, or to the person of the intestate or testator of any executor or administrator, they shall not survive the death of the person to whom or by whom the wrong is done. The wrongs referred to in these sections are such only as are committed upon the ‘ property, rights, or interests ’ of the testator or intestate, and to a cause of action for which the executors and administrators acquire a derivative title alone. The whole scope and design of the statute is to extend a remedy already accrued to the representatives of a deceased party, and provide for the survival only of an existing cause of action. [Page 262.] * * * From the same review, it is quite evident that the authors of the statute intended explicitly to pro vide for the abatement of causes of action for personal injuries occurring to the plaintiff, or to his intestate or testator. The assignability and survivability of things in action have frequently been held to be convertible terms, and perhaps furnish as clear and intelligible a rule to determine what injuries to property, rights, or interests are meant- by the statute as it is possible to lay down. People v. Tioga Common Pleas, 19 Wend. 73; Zabriskie v. Smith, 13 N. Y. 322. The rights of property only which are in their nature assignable, and capable of enjoyment by an assignee, are those referred to in the statute. Such rights as arise out of the domestic relations clearly do not possess the attributes of property, and are not assignable by the possessor.” Page 266. In Brackett v. Griswold, 103 N. Y. 428, 9 N. E. Rep. 438, Judge Finch, in speaking for a unanimous court, said: “We have not been unmindful that in our discussion of this question we have assumed the assignability of a cause of action as a test, treating that and survivability as convertible terms. ” Section 1910 of the Code of Civil Procedure provides: “Sec. 1910. Any claim or demand can be transferred, except in one of the following cases: (1) Where it is to recover damages for personal injury or for a breach of promise to marry; (2) where it is founded upon a grant which is made void by a statute of the state, or upon a claim to or interest in real property, a grant of which, by the transferrer, would be void by such a statute; (3) where a transfer thereof is expressly forbidden by a statute of the state, or of the United States, or would contravene public policy. ” This section relates exclusively to substantive law, but not to the law of procedure; and subdivision 11 of section 3347 does not except this cause of action from the operation of the section. The cause of action arose in 1875; and in 1880, by the operation of the section, it became assignable, and was assignable at the date of the death of Mrs. Morenus; and, if assignability is a test of survivability, the action has not abated. The action did not abate by the death of Lenora Morenus, and its revival by order of the court, and its continuance by the representatives, is legal.

“(4) The court erred in its rulings on the trial.” The rulings at folios 5, 63, and 64 relate to the question of abatement, which has been discussed under the third point, and determined in favor of the plaintiff, which renders a discussion of these rulings unnecessary The defendant testified that he did not sell or deliver whisky to John Morenus on the 15th of May, 1875. The plaintiff was permitted to prove that between 1874 and 1880, inclusive, he was seven times indicted and convicted of violating the excise law, five of the convictions being upon the plea of guilty. This was competent for the purpose of affecting the weight of his testimony. Pen. Code, § 714; Code Civil Proc. § 832; People v. Burns, 33 Hun, 296; People v. Elmore, 3 N. Y. Crim. R. 264; People v. French, 102 N. Y 583, 7 N. E. Rep. 913. The objection that, having shown part of these convictions by cross-examination of the defendant, record evidence could not be resorted to to prove the same and additional convictions, is untenable. It was competent to prove the convictions by two witnesses, lío errors were committed in the rulings on the trial.

“ (5) The j udgment is u nsupported by the evidence. ” John Morenus testi fled that defendant sold and delivered him whisky May 15, 1875, some of which he drank in the presence of defendant, and a pint of which he carried away in a bottle. Others testified to drinking whisky on that occasion with Morenus, which was delivered by the defendant and drank in his presence. One witness testified that defendant said to him after the accident that he did sell Morenus whisky On the contrary, defendant testified that he did not sell Morenus whisky on the 15th of May, 1875, and other witnesses testified that Morenus told them on various occasions after the day in question that defendant gave him nothing but cider. This presented a fair question of fact for a jury, the verdict of which will not be disturbed, especially in view of the, fact that a former jury and a referee of great learning and experience have previously found the facts in the same way. The judgments and orders are affirmed, with costs.

Kennedy, J., concurred.  