
    Maynard N. Clement, as State Commissioner of Excise of the State of New York, Respondent, v. Henry D. Dwight and Others, Appellants.
    Fourth Department,
    March 9, 1910.
    Intoxicating liquors—sale of peruna by apothecary — when sureties liable — evidence — percentage of alcohol in standard liquors —• percentage of alcohol in recognized medicines — damages — intent.
    The sureties on the bond of an apothecary licensed to sell liquors only upon the written prescription of a physician and alcohol for medical purposes without a prescription, are liable in an action by the State .Commissioner of Excise where the jury finds that “Peruna” sold by the apothecary which contained twenty-seven per cent of alcohol was not sold for medical purposes but as a beverage, ■ irrespective of the intent of the apothecary in making the sale. • .
    In such action it is harmless error to permit an expert to state the percentage of alcohol in standard -whiskies, wines and beers, where the percentage of alcohol in peruna was not controverted.
    In such action it is error to allow the defendant to show the percentage of alcohol in other preparations recognized as standard medicines by the United States Dispensatory to support a claim that peruna was a medicine, for although such preparations tnay be recognized-as medicines by the Dispensatory, they may be liquors within the meaning of the Liquor Tax Law.
    As an action on the bond of- such apothecary is an action on contract, and the damages are liquidated hy the agreement, the intent of the apothecary in making the sale is immaterial.
    Appeal by the defendants, Henry D. Dwight and others, from- a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 28th day of December, 1906, upon the verdict of a jury rendered by direction of the court, certain questions of fact having been submitted to them, and also from an order entered in said clerk’s office on the 18th day of December, 1906, denying the defendants’ motion for a new trial made upon the minutes.
    
      William L. Ba/rnvm and Edwin M. Wells, for the appellants Dwight and Hye.
    
      Royal R. Scott and Herbert H. Kellogg, for the respondent.
   Spring, J.:

The appellants, Dwight and Bye, were copartners carrying on a retail drug business in.the city of Syracuse, and a liquor tax certificate was issued to them as licensed pharmacists in May, 1904, under the provisions of subdivision 3 of section 11 of the Liquor Tax Law. The certificate was in force at the time of the. alleged violation set forth in • the complaint, and authorized these defendants to sell liquors upon the written prescription of a duly licensed physician, and also to sell alcohol for medicinal purposes without a prescription. (Liquor Tax Law [Gen. Laws, chap. 29; Laws of 1896, chap. 112], § 11, subd..3, as amd. by Laws of 1903, chap. 115; since revised into Liquor Tax Law [Consol. Law's, chap. 34; Laws of 1909, chap. 39], § 8, subd. 3.) ' , .

At the time of the filing of the - application for such certificate these defendants delivered to the county treasurer of said county a bond in the penal sum of $500, executed by them as principals arid the appellant guaranty company as surety, and which conformed to the provisions of section 18 of the Liquor Tax Law. (Gen. Laws, chap. 29 [Laws of 1896, chap. 112], § 18,. as amd. by Laws of 1903, chap. 486; since amd. by Laws of 1908,' chap. 350, and revised into Consol. Laws, chap. 34 [Laws of 1909,.cliap. 39], § 16.) This action was commenced by the State Commissioner of Excise to recover the penalty named in the bond by reason of the alleged breach of its provisions. - ' . '

The evidence shows without dispute that on the 18th day of April, 1905, the defendants Dwight and ¡Nye sold at their store to one Pollard six pint bottles of Peruna which, the respondent claims, contained liquors. . The defendants contend that the contents were a medicine, and this issue raised the principal question of fact. The evidence again, without controversy, showed that each bottle contained about twenty-seven per cent of alcohol and seventy-three, per cent of water, and that the other ingredients in the mixture, did not prevent its use as a beverage. There was evidence on-the one side showing that it possessed no medicinal value, and that the aleo-, hoi was the only part.of the decoction possessing any practical, efficacy; while the defendants gave proof tending to show that it was a cure or remedy for Bright’s disease, catarrh and other diseases. At the close of the evidence the plaintiff moved for a direction of a verdict, the determination, of which the trial court held in abeyance Until the jury should pass upon six specific questions which it submitted. These questions were not objected to by the defendants’ counsel, and at the suggestion of the com;t he .aided in the preparation of some of them. ,

In answering these questions the jury determined whether this preparation sold to Pollard was “a proper remedy for the treatment and cure ” of Bright’s disease and the various other diseases for which it was claimed to be a cure or remedy; and also whether the quantity of alcohol in the preparation was necessary to hold the drugs in solution, and whether the quantity of drugs contained in one bottle of the alcohol diluted with water [was] sufficient in amount, in tablespoonful doses three or four times a day, to produce any appreciable remedial effect.” Each question was answered by the jury in the negative, and, consequently, adversely to the defendants.

Upon the coming in of this special verdict the court directed a general verdict in favor of the plaintiff for $500. (Code Civ. Proc. § 1187.) The specific questions passed .upon by the jury were explicit, and covered every material question upon which there was any conflicting evidence, and each special finding is well supported by the evidence.

The appellants’ counsel urges upon our attention certain alleged errors committed during the trial which he claims require a reversal of the judgment.

Dr. Deghuee, an. expert witness on behalf of the plaintiff, had testified to his analysis of one bottle of the Peruna sold by the defendants to Pollard, and that it contained twenty-seven and thirty-one one-hundredths per cent alcohol by volume, and seventy-two and sixty-nine one-hundredths per cent water by volume. He was then permitted to answer, over the objection and exception of the defendants’ counsel, what per cent of alcohol was contained in standard whisky and decanter wines and lager beer. The claim óf the plaintiff was that this compound was a beverage, and that the drug ingredients in it did not make it a proprietary mixture of medicinal value or detract from its use as an alcoholic stimulant.

■ In order that the' jurors might appreciate the force of this claim the plaintiff was permitted to show the quantity of alcohol in certain well-known beverages which were specifically defined to be liquors in the act. The jurors may possibly have been assisted to soine extent by this proof in determining whether Peruna might be used. as a beverage,

The evidence, however, was unimportant, and, even if objectionable¿ could not have been harmful. Th,e quantity of. alcohol in the mixture was not controverted. The position of the defendants was that the addition of the drugs-to the mixture made it a proprietary medicine and a remedy in the treatment of' certain specific diseases. The stimulating effect of the alcohol was'not lessened by the drugs. If the ingredients, which it is claimed gave medicinal value to the compound, were eliminated, it could not be claimed' that the alcohol, although diluted with water, was- not liquor within the meaning of the act.

The- proof was not directed to the intoxicating properties of Peruna, or at least, only incidentally. One of the tests applied to any mixture for the purpose of ascertaining whether it is liquor within the meaning of the Liquor Tax Law is the- quantity of alcohol-it contains. When there is found in any preparation twenty-seven-per cent of alcohol and seyenty-three per' cent' of water it is . clear it must be a liquor within the act unless its effect is destroyed: or largely neutralized by its. mixture with other ingredients, and that was not the effect produced by the cubebs, Corydalis formosa and the other component parts of Peruna..

' In People v. Cox (106 App. Div. 299) the defendant was conr victed of selling liquor without a license where the offense charged ' consisted of the sale of one pint of a liquor “ Maltrose,” although it contained only about one per cent in volume óf alcohol.

The defendants, in support of their- claim that Peruna was a pro-, prietary medicine, endeavored to show the percentage of alcohol in tincture of arnica and other preparations recognized ■ as a standard medicine in the United States Dispensatory, and .this evidence was properly excluded. Each of these preparations, although designated as a medicine in the dispensatory mentioned, may have been liquor . within the compass of the Liquor Tax Law. ' After 'all, the only' question.the jury was interested in was the character of the Peruna sold by the defendants to Pollard, and its component parts were not' in controversy to any extent.

The counsel for the defendants endeavored to show that they acted in good faith in selling the Peruna, believing it was a .medicine. The action is on contract to recover damages for breach of its conditions and the amount of the damages is fixed and liquidated by the agreement itself. (Cullinan v. Burkard, 93 App. Div. 31, 33; Lyman v. Shenandoah. Social Club, 39 id. 459; Lyman v. Perlmutter, 166 N . Y. 410.)

The question of intent is, therefore, unimportant. The act is a tax measure levying taxes at designated rates upon specific grades or kinds of the business of trafficking in liquors. The defendants, upon the payment of seven dollars and fifty cents, were granted permission to sell liquors only upon the written prescription of a regularly licensed physician, and alcohol to be used for medicinal or mechanical purposes, without a prescription, and the tax imposed is small by reason of these restrictions. If a sale of liquors or alcohol is made not within the privilege granted the conditions of the bond are violated and an action for the damages sustained may then be maintained.

_ The findings of the jury' in this case establish. that the Peruna sold was not for medical purposes, but was a beverage salable only because of the quantity of alcohol contained in it.

We think the other exceptions discussed in the brief of the appellants’ counsel do not constitute reversible error.

The judgment should be affirmed, with costs.

All concurred.

Judgment and order affirmed, with costs.  