
    Christine Yamonaco, as Executrix of Pasquale Femiano, Deceased, Plaintiff, v. Genevieve Murphy et al., Doing Business as Bungalow Restaurant, Defendants. Clarence W. Burgess et al., Doing Business as Bungalow Restaurant, Defendants and Third-Party Plaintiffs, v. William Townsend et al., Third-Party Defendants.
    Supreme Court, Monroe County,
    January 16, 1963.
    
      Nixon, Hargrave, Devans é Doyle (William B. Lee of counsel), for third-party defendants. Herbert G. Kuhn for third-party plaintiffs.
   G. Robert Wither, J.

This is a motion by third-party defendants, William Townsend and Mary Townsend, to dismiss the third-party complaint of the defendants and third-party plaintiffs, Clarence W. Burgess and Geneva Burgess.

In the original complaint the plaintiff alleges that her testator was killed in an automobile accident caused by the negligence of said William Townsend, operating the automobile of his wife, Mary Townsend; that at said time William Townsend was intoxicated; that defendants, the Burgesses, in violation of law sold alcoholic beverage to Townsend when he was intoxicated; and that this contributed to his intoxication and to the happening of the accident. In their complaint the third-party plaintiffs, the Burgesses, recite the original action against them and allege that the accident occurred by reason of the negligence of Townsend and not by reason of any negligence or act of the Burgesses.

It is patent that defendants, the Burgesses, cannot be found liable in the original action unless they sold intoxicating liquor to Townsend while he was intoxicated and such intoxication was a proximate cause of the accident. (Alcoholic Beverage Control Law, § 65; Civil Rights Law, § 16.) That being so, they will not be held liable to the plaintiff unless they are found guilty of active wrongdoing and in pari delicto with Townsend. Under such circumstances they can have no cause of action over against Townsend. (Coffey v. Flower City Carting & Excavating Co., 2 A D 2d 191, affd. 2 N Y 2d 898; Kinney v. 1809 Forest Ave., 7 Misc 2d 1.) The motion to dismiss the third-party complaint is therefore granted.  