
    (67 Hun, 579.)
    AUSTIN, Overseer of Poor, v. CARSWELL.
    (Supreme Court, General Term, Third Department.
    February 15, 1893.)
    1. Intoxicating Liquors—Penalties for Illegal Sales—Civil Action.
    The fact that a person has been prosecuted criminally for selling liquor without license will not bar a civil action under the excise law to recover the penalties for such unlawful sales.
    2. Same—Improper Evidence.
    To remedy an erroneous reception of evidence of such prosecution, it must be plainly stricken out, or the jury told distinctly to disregard it, and the error is not cured by a remark of the judge to the jury that “whether there have been prosecutions of criminal nature for offenses of this nature or not * * * is no concern of yours. ”
    Appeal from Washington county court.
    Action by Charles W. Austin, as overseer of the poor of the town of Cambridge, Washington county, N. Y., against Sarah A. Carswell, to recover the penalties fixed by law for violations of the excise law in selling liquors without license. The action was originally brought before John L. Pratt, a justice of the peace, before whom judgment was rendered against defendant for $200 and costs, and defendant appealed therefrom for a new trial to the county court. From a judgment for costs entered in the county court..Against plaintiff on a verdict of no cause of action, plaintiff' appeals.
    Reversed.
    On the trial in the county court ■ defendant was allowed to testify, over plaintiff’s objection, that she had" been previously indicted and fined $100 after she had been refused a license by the excise board.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    D. M. Westfall, for appellant.
    John K. Larmon, (James H. Ryan, of counsel,) for respondent.
   PUTNAM, J.

I think an error was committed upon the trial in overruling plaintiff’s objections to the evidence offered by defendant, to show that she had been taken to Sandy Hill, and fined $100. This evidence was irrelevant to the case on trial, and may have had some influence upon the jury. It is held that illegal evidence tending to excite the passions, arouse the prejudices, awaken the sympathies, or influence the judgment of jurors rriay not be considered harmless. Hutchins v. Hutchins, 98 N. Y. 56. Although this evidence was improperly received, the error could have been cured had the court afterwards struck out such evidence, or directed the jury to disregard it. The remark of the judge, that “whether there have been prosecutions of criminal nature for offenses of this nature or not * * * is no concern of yours,” cannot" be deemed a striking out of the evidence in question, or a direction to the jury to disregard it. To remedy an erroneous reception of evidence, it must be plainly stricken out, or the jury must be distinctly told to disregard it. The above-quoted instruction of the trial judge is ambiguous, and does not come up to this requirement. Again, the judge was requested to charge that defendant may be liable civilly, although she may have been prosecuted criminally for the same offense. He declined to so charge, on the ground that he had already charged on that point. I am unable to discover that he had charged in that regard. I think plaintiff was entitled to have the instructions requested given to the jury. For this error there should be a new trial. It is therefore unnecessary to consider other exceptions, or whether- the charge of the trial judge to the effect that, if Roach made the sales of liquor shown on the trial without the knowledge or consent and against the instructions of defendant, she was not liable, is correct or not. It was shown that defendant was proprietor •of the hotel, and that Roach, at the time of such sales, was her bartender. He testified that the receipts for all sales of liquor were passed ■over to defendant. Under such circumstances, there are authorities holding defendant liable although Roach had sold the liquor against her express directions. 3 Amer. & Eng. Enc. Law, 258; Smith v. Reynolds, 8 Hun, 128; Keedy v. Howe, 72 Ill. 133; George v. Gobey, 128 Mass. 289. And see Amerman v. Kall, 34 Hun, 127. Without passing upon this point, however, and for the reasons above stated, I think the judgment should be reversed, and a new trial granted, costs to .-abide the event. All concur.  