
    Jane M. Reid, Resp’t, v. Henry S. Terwilliger, Impl’d, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November, 1886.)
    
    Civil damage act—Laws 1873, chap. 646—Joint action against lessor
    AND LESSEE—EXEMPLARY DAMAGES.
    The civil damage act creates a cause of action unknown to the common law; by it both the lessor and lessee of premises on which liquor is sold, they having knowledge of the fact, are declared liable for all damages sustained, and for exemplary damages. In a joint action against the lessor and lessee under the statute, evidence being adduced sufficient to make out a case against the lessee for exemplary damages, in order to hold the lessor jointly liable therefor, it is not necessary to show that lie himself has personally done any wrong with respect to this particular sale of liquors, but merely that he sustained the relation to his wrong doing
    v tenant, which the statute defines. Learned, P. J., dissenting,
    
      Gideon Hill, for resp’t; Scott & Hirschberg, for app’lt.
   Landon, J.

The civil damage act, chap. 646, Laws 1873, creates a cause of action unknown to the common law and anew ground of action. Volans v. Owen, 74 N. Y., 526; Mead v. Stratton, 87 id., 493.

This cause of action is given for injuries defined by the act, and resulting from intoxication. It is given not only against the person who sold the liquor causing, or contributing to cause, the intoxication from which the injury resulted, but also against the person owning or renting the building in which such liquor was sold, having knowledge that intoxicating liquors are to be sold therein. Such person may be sued severally or jointly with the person selling the liquor, and both are declared hable for “all damages sustained, and for exemplary damages.” The seller and his landlord were jointly sued in this action. A case permitting the finding of exemplary damages was made against the tenant. The landlord was shown to the satisfaction of the jury, to have had knowledge that intoxicating liquors were to be sold in his building. The common law would not make him hable for exemplary damages, but the statute does. The test of liability that the statute imposes upon the landlord is, not that he himself should have personally done any wrong with respect to this particular sale of liquor, but that he should have sustained the relation to his wrong doing tenant, which the statute defines.

“It is evident,” says the court in Mead v. Stratton, supra, “that the legislature in such a case intended to go far beyond anything known to the common law, and to provide a remedy for injuries occasioned by one who is instrumental in producing, or who caused such intoxication.”

And to make the remedy efficient and ample, it gave it jointly against both landlord and tenant, and embraced actual and exemplary damages. Moreover the act is entitled “an act to suppress intemperance, pauperism and crime.” That these damages were denounced against the landlord as well as the tenant was manifestly the legislative instrument for the suppression of these evils.

Rawlins v. Vidvard (34 Hun 205), was an action against the landlord alone. The court held that exemplary damages could not be awarded against him without proof of aggravating circumstances with which he was connected. The court did not hold, and had no occasion to hold, that if both landlord and tenant had been jointly sued, and a case warranting exemplary damages had been made out against the tenant, the landlord would not have been jointly liable with him.

The judgment should be affirmed, with costs.

Bocees, J., concurs.

Learned, P. J.,

(dissenting).—This is an action-under the so-called “civil damage act,” brought jointly against Terwilliger, the lessor of the premises, and McLaughlin, the lessee and keeper of the hotel who sold the liquor

Terwilliger was in no way connected with the sale of the liquor.

There was evidence sufficient to justify the jury in finding that McLaughlin sold the liquor under such circumstances that exemplary damages might be recovered against him.

The only question here is, whether exemplary damages could be recovered against Terwilliger, who had no connection with the sale of the liquor, and whose liability was only that imposed by the statute on the owner and lessor of the premises.

Exemplary damages under this act can be recovered only when there are circumstances of abuse or aggravation proved. Franklin v. Schermerhorn, 15 Sup. Ct., 8 Hun., 112.

Exemplary damages are allowed against a wrong doer and for example’s sake; as for instance against a vendor without license. Neu v. McKechnie, 95 N. Y., 633 at 636.

If Terwilliger had been sued alone no exemplary damages could have been recovered against him on the facts of the case. He had only leased the premises as a hotel; and this was a lawful and a proper tran saction. And even if he knew that liquors were sold there; such sale was lawful, for the hotel keeper had a license?

There had been nothing done by Terwilliger for which he should be punished to make an example; unless leasing-property as a hotel should be punished. There were no aggravating circumstances with which he was connected. Rawlins v. Vidvard, 41 Sup. Ct. (34 Hun.), 205.

If then the plaintiff had brought several actions against. Terwilliger and McLaughlin; she might have recovered against the latter actual and exemplary damages. She-could have recovered against the former only actual damages. There is nothing to the contrary in Bertholf v. O’Reilly, 74 N. Y., 525.

The liability under this act is wholly statutory -Nonesuch existed at common law. But there is some analogy between the relation of owner and tenant under this statute, and that of master and servant at common law.

The servant may be liable for exemplary damages for his. - own wrong doing in his master’s employment. The master is not then liable for exemplary damages; but he may be so liable for some gross neglect or misconduct on his own part. Fisher v. Met. El. R. R. Co., 41 Sup. Ct. (34 Hun.), 433.

In other words, exemplary damages are given to punish a man for his own wrong and not to punish him when he-is liable only as superior.

So in the case of owner and tenant under the civil damage act, the owner is, under certain circumstances, made-by statute liable for damages. And he may be liable for exemplary damages. But, as said in Davis v. Standish, 33 Sup. Ot. (26 Hun.), 615, we must look to the common law to determine when punitive damages may be had and the common law shows that punitive damages are inflicted (as the word indicates) by way of punishment; and therefore for a man’s own wrong doing; not for the wrong doing of another, for which he may however be hable to respond in actual damages.

The aggrieved party, in cases like the present, may sue the owner and the vendor jointly or severally. The amount of damages which could be recovered against each, when sued separately, might be different. There might be aggravating circumstances against one or against the other. There is no joint act. The privilege of a joint action is only statutory.

If Terwilliger when sued separately could not be made hable for exemplary damages except on the ground of some wrong doing upon his own part, then he should not be hable for such damages when sued jointly

But the plaintiff urges that she has the privilege of bringing a joint action and that there cannot be separate verdicts. She was not compelled to sue jointly. It is more reasonable that if she sues jointly she should be limited to a recovery only of actual damages against an innocent person, rather than that an innocent person should be punished by punitive damages for another’s malicious act.

The doctrine of exemplary damages is illogical, though settled. It should not be extended to any more illogical conclusions.

The judgment should be reversed. 0  