
    Elizabeth Goram, App’lt, v. Hanford R. Cable, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 8, 1892.)
    
    Civil damage act—Proof of intoxication.
    Plaintiff’s husband and another man after drinking a pint .of whiskey between them went to defendant’s hotel and had three glasses of beer, and then went in a boat fishing. The boat overturned and plaintiff’s husband was drowned. Held, insufficient to show that the deceased was intoxicated. ' ■
    Appeal,from judgment dismissing the complaint.
    The action was brought under chapter 646 of the Laws of 1873 of the state of New York and generally designated the civil damage act
    The appellant is the widow of James Goram, who was drowned in Glenmere Lake October 19, 1890.
    Hé and his companion, Moses Dubois, had started out to go fishing in a small row boat, and when a short distance from the starting point the boat capsized and Goram was drowned.
    No one saw Goram or Dubois, nor saw the boat at the time it was turned over. Dubois’ back was towards Goram at the time of the accident, and he was unable to give any account of how the accident occurred.
    The testimony shows that Goram, Dubois and a young man named Eli Case started out from the village of Chester, about lour miles distant from Glenmere' Lake, at about seven or half - past seven in the morning to go chestnutting pursuant to a previous understanding had among them.
    
      When they met Gorham had a bottle and Dubois had a bottle,, each containing about a half pint of liquor.
    The three remained together until half-past ten or eleven1 o’clock in the forenoon, and among them they drank the contents of the two bottles. Case then went home and Goram and Dubois went on to the lake, reaching there about twelve o’clock.
    Dubois testifies that he had three glasses of beer at the respondent’s place, Glenmere Lake; that Goram drank when he did, substantially, that he drank three glasses of beer. But testifies that Goram was not intoxicated.
    That they started out with the boat between twelve and one-o’clock, and that the accident occurred very shortly after they had started out with the boat. ■ . '
    The only witness who testified as to Goram having drunk anything intoxicating that day was the witness Dubois, and he is the only person who testified as to whether Goram was intoxicated or not at the time or previous 'to .the accident, and he stated, “ 1 don’t think he was intoxicated when he got in this boat.”
    
      W. J. Groo, for app’lt; Greene & Bedell, for resp’t.
   Pratt, J.

We do not think it proved that deceased was intoxicated on the day of his death.

We are not able to say as a matter of law that because two-men have together consumed a pint of whiskey in a day they must both be intoxicated.

Judgment affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.  