
    Nellie Quinlan, an infant, by Guardian, etc., Resp’t., v. James H. Welch, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed January 30, 1894.)
    
    1. Civil damage act.—Effect of act of 1893.
    The only effect of § 3, chap. 403 of 1893, is to amend chap. 646 of 1873, by requiring a certain notice in writing to be given before a cause of action can accrue.
    3. Same.
    A cause of action which accrues prior to such amendment is not affected thereby.
    3. Appeal. —First instance.
    A point, though presented by the proofs, if not raised on the trial and the attention of the court called to it, cannot be considered on appeal.
    
      Appeal from judgment of the general term of the supreme court in the fifth judicial department, entered upon an order made June 23, 1893, which affirmed a judgment in favor of plaintiff entered upon a verdict and affirmed an order denying a motion for a new trial.
    The nature of the action and the facts, so far as material, are stated in the opinion.
    
      J, Arthur Corbin, for app'lt; F. W. & K F. Kruse, for resp’t.
    
      
      Affirming 53 St. Rep., 256.
    
   Bartlett, J.

The plaintiff, the infant child of Dennis Quinlan, deceased, brings this action under chapter 646 of the Laws of 1873, known as the Civil Damage Act,” to recover damages for her father’s death, caused, as alleged, by the sale of intoxicating liquors to him by one O’Leary, the tenant or occupant of premises owned by the defendant, James H. Welch. At the opening of the trial it was conceded that the store and premises in Clean, at which it is alleged that the intoxicating liquor was sold June 17, 1891, were then owned by the defendant, and that he rented them to O’Leary some time prior to that date, and knew that O’Leary was selling intoxicating liquors there on the 17th day of June, 1891.

The action was tried at the Cattaraugus circuit in September, 1892, and resulted in a verdict for plaintiff.

Dennis Quinlan, the deceased, lived at Portville; he was an industrious man, employed by the Portville Tanning Company as a skilled workman, and the sole support of his wife and family by day’s labor, he having no property; he arrived in the village of Olean on the afternoon of the 17th day of June, 1891, and with several companions visited the saloons of the town, the defendant’s premises among others, and drank heavily; the evening of that day he boarded a train to return home, and was at the time much intoxicated; he left the train at Weston early in the evening, and the next morning about eight o’clock his mutilated body was found on the railroad track midway between Weston and Portville.

It does not appear when the deceased met his death; he evidently attempted, during the night, to walk on the track from Weston to Portville.

The defendant moved for a nonsuit practically on two grounds, failure of proof and the absence of the notice required by chapter 403 of the Laws of 1892.

As to the alleged failure of proof, we are of opinion that there was sufficient evidence to submit to.the jury as to all the essential facts necessary to sustain this action under the Civil Damage Act of 1873, and the verdict is conclusive.

The defendant’s contention that chapter 403 of the Laws of 1892, is applicable to this case presents the principal point on this appeal

The second section of that act, which was passed April 30, 1892, reads as follows, viz.:

“ § 2. A recovery may be had in a civil action of the damages suffered by reason of the intoxication of any person from any person or persons who shall, by selling or giving away intoxicating drink, have caused such intoxication, or from any persons owning or renting or permitting the occupation of any building or premises wherein such selling or giving away shall have occurred, jointly with the person or persons selling or giving away, or severally, if the person or persons suffering such damages shall, previous to such selling or giving away, have given written notice to the licensee or his agents, or the person or persons so selling or giving away, forbidding such selling or giving away to the person whose intoxication shall have caused such damage, and not otherwise.”

It is insisted that this statute repealed by implication chapter 646 of the Laws of 1878, and that even if the legal effect was amendment and not repeal, the right of action, accruing to defendant in June, 1891, under the act of- 1873, and by virtue of which she had commenced this action, was taken away.

We regard both these propositions as unsound. The second section of chapter 403 of the Laws of 1892 does not cover the whole subject-matter of chapter 646, Laws of 1873, and its only effect is to amend the latter statute by requiring a certain notice in writing to be given before a cause of action can accrue.

Whether a subsequent statute repeals a prior one, in the absence of express words, depends upon the intention of the legislature. Anderson v. Anderson, 112 N. Y., 111; 20 St. Rep., 344.

While this intent is sufficiently manifest in the case at bar, upon the reading of the subsequent statute, our attention has been called to the fact that on the same day chapter 403 of Laws 1892,was approved by the governor April 30th, 1892, and one hour before such approval, the executive approved chapter 401 of the Laws of 1892, known “ as an act to revise and consolidate the laws regulating the sale of intoxicating liquors.”

Section 40 of this act clearly recognizes the action created by chapter 646 of the Laws of 1873, and provides no recovery shall be had “ unless one of the persons who might have such a cause of action * * * "hall, prior to such sale or giving away, have given written notice to the person selling or giving away such intoxicating drink, forbidding such sale,” etc.

The subsequent act (Ghap-ter 403, Laws of 1892), which became law an hour after the above statute, is entitled “An act in relation to excise,” and provides in the first section for the appointment of the clerks of excise boards, and the second section deals with the subject of notice as contained in chapter 401, Laws of 1892, section 40, already quoted, and provides- the notice shall be" given “ to the licensee or his agents, or the person or persons so selling or giving away,” etc., thus increasing the number of persons to whom notice may be given. It also extends the application of the notice to actions against persons owning or renting or permitting the occupation of premises where the offense occurred, which was not covered by said section 40. It is quite clear that the later statute was intended to supply omissions in the early one, and that both are to be read as amendatory of chapter 646, Laws of 1873, and not as repealing it by implication.

The defendant, however, insists that treating chapter 403 of Laws of 1892, as amending chapter 646, Laws of 1873, its effect was to deprive plaintiff of her cause of action, which accrued in June, 1891.

The Civil Damage Act of 1873 is not a penal statute, but creates a cause of action for damages which was unknown to the common law.

This court held in Volans v. Owens, 74 N. Y., 530, that “the primary purpose of the legislature in giving a right of action for an injury of this character was the protection of the dependent and helpless."

The repeal of a penal statute discharges offenses committed before such repeal aud proceedings based thereon. 1 Hale’s Pleas of the Crown, 291; Hartung v. People, 22 N. Y., 99, 100; Curtis v. Leavitt, 15 id., 229; Butler v. Palmer, 1 Hill, 324. This statute of 1873 being in no sense penal it falls within the rule which has long existed and was recognized by this court in Matter of Miller, 110 N. Y., 216; 18 St. Rep., 226.

The question presented in that case was whether a beneficiary who had become liable to pay a tax under the Collateral Inheritance Act of 1885 (Ch. 483) was released from the payment thereof by chapter 713, Laws of 1887, which was enacted before payment of said tax and under the terms of which the tax was not imposed.

Judge Danforth, at page 223, says:

“ The surrogate and the supreme court, however, thought the case made by the petitioner should be decided as if the act of 1887 had not been passed, and we are of that opinion. The rule is considered settled in this state that neither original statutes nor amendments have any retroactive force, unless in exceptional cases as the legislature so declare.” Dash v. Van Kleeck, 7 Johns., 477; Sanford v. Bennett, 24 N. Y., 20; People ex rel. Newcomb v. McCall, 94 id., 587-590. In the latter case Judge Earl says, at page 590: “ It is a general rule often reiterated and laid down in reported decisions that laws should be so construed as to be prospective and not retrospective in their operations unless they are specially made applicable to past transactions and to such as are still pending.” We, therefore, hold that plaintiffs cause of action was not affected by either chap. 401 or 403 of the Laws of 1892.

There only remains to be considered a point raised by defendant for the first time at the general term to the effect that plaintiff having been born after her father’s death could not maintain this action.

It appeared by the testimony of the widow of Dennis Quinlan that the infant plaintiff was born on the 18th of June, 1891, and the witness adds, “the day after her father was killed.” This latter statement was inference or inadvertence, as there is no proof whether the father met his death on the evening of June 17th or the morning of June 18, 1891.

This point is, therefore, not presented under the proofs, as it is possible the deceased met his death after midnight of the 17th of June, 1891, and it does not appear at what hour on the 18th of June, 1891, the plaintiff was born.

It is not necessary, however, to decide whether the point is presented under the proofs as the defendant should have raised it at the circuit on his motion for nonsuit if he desired its consideration here. •

This court has repeatedly held that a motion for a nonsuit or to dismiss the complaint to be effectual must specify the defects supposed to exist. Binsse v. Wood, 37 N. Y., 532; Thayer v. Marsh, 76 id., 340; Sterrett v. Third Nat. Bank of Buffalo, 122 id., 659; 34 St. Rep., 241.

The reason of the rule is obvious, as it affords an opportunity to supply additional proof where it is possible.

After a careful consideration of this case we are of opinion that the judgment and order appealed from should be affirmed, with costs.

All concur.

Judgment affirmed.  