
    Streever v. Birch.
    
      (Supreme Court, General Term, Third Department.
    
    December 28, 1891.)
    Intoxicating Liquors—Sales to Minor—Civil Damage Act.
    Plaintiff entered into a verbal contract with an infant to provide him with board, medical attendance, care in case of sickness, etc., in consideration of services to be rendered during his minority. While working under such, contract the infant, being intoxicated by liquor furnished by the lessee of defendant’s saloon, fell and was seriously injured, and in consequence of such injury was incapacited for services for a long time, during which plaintiff duly cared for him under his contract. Held, that as the contract with the infant was executory and not enforceable, and plaintiff could recover from the infant for the necessaries furnished, an action would not lie by plaintiff under the civil damage act during the infant’s minority, plaintiff not being injured in “property, ” within the meaning of the statute.
    Appeal from circuit court, Saratoga county.
    Action by Edward Streever against Betsey Birch under the civil damage act. Plaintiff appeals from a judgment dismissing his complaint.
    Affirmed.
    Argued before Learned, P. J., and Mayham, J.
    
      Maxon & Wiswall, (Edgar T. Brackett, of counsel,) for appellant. James W. Verleck, for respondent.
   Learned, P. J.

This is an appeal from a judgment on a dismissal of the complaint upon plaintiff’s opening and offer of proof. The facts material are as follows: In January, 1890, plaintiff made a verbal contract with one James Tappan, then a minor 17 years old, that Tappan should live with plaintiff and render him services, and as compensation he should provide Tappan with board, clothing, medical attendance, and care in case of sickness, and should give him $100 when he became 21 years of age. Under that agreement Tappan worked from January 25, 1890, to December 25, 1890. On the Last day the defendant owned an hotel, known to her to be used for the sale of intoxicating liquors, and the lessee or his agent sold Tappan intoxicating liquor. He became intoxicated, fell in the road, and was seriously frozen. Tappan, being thus injured, was cared lor by the plaintiff, and provided with medical attendance, in pursuance of said agreement, to the extent of $216. Neither plaintiff nor Tappan had repudiated the said verbal agreement. In consequence of Tappan’s injury he was incapacitated from rendering services to plaintiff for two months. The circumstances of the sale (as plaintiff offered to prove them) were such as to entitle plaintiff (if entitled to anything) to punitive damages against defendant. The sole question is whether under what is called the “Civil Damage Act” the plaintiff has a cause of action. Chapter 646 of the Laws of 1873, § 1, leaving out the words which are not material here, is as follows: • “Every employer who shall be injured in person, property, or means of support in consequence of the intoxication of any person shall have a right of action, against any person who shall, by selling intoxicating liquors, have caused the intoxication of such person.” The remainder of the section makes the owner of the building, having knowledge, etc., liable with the person selling. The plaintiff was an employer of Tappan. The question is whether plaintiff was injured in property by Tappan’s intoxication; for it is plain that he was not injured in person or in means of support. No cause of action exists in his favor by common law. Volans v. Owen, 74 N. Y. 526. The case of New v. McKechnie, 95 N. Y. 632, cited by plaintiff, was one of injury to means of support, and therefore throws no light on the present case.

The plaintiff’s first position is that the agreement between him and Tappan was for necessaries, and therefore valid. It is true that, when an infant has no parent or guardian who is able to furnish what is necessary, he is liable for necessaries furnished him. Kline v. L'Amoureux, 2 Paige, 419. It does not appear whether Tappan had such parent or guardian; but, assume that he had none, then he is liable to pay for necessaries furnished him at his request. But that principle does not mean that the executory contract in regard to such necessaries is binding. Beardsley v. Hotchkiss, 96 N. Y. 201. This was shown in Baum v. Stone, 12 Wkly. Dig. 353, where it is said that the seller may recover, “not because of the contract fixing the price, but because at law the infant is bound to pay the reasonable worth of necessaries. ” Thus in this case the plaintiff may have a good claim against Tappan for the reasonable worth of necessaries furnished him, but the contract by which Tappan was to do such and such work therefor is not binding. In the case last cited the infant lived with and worked for defendant for several years before coming of age. It was held that, whatever had been the contract between them, the infant was entitled to recover the value of his services after deducting the value of the necessaries furnished. See Whitmarsh v. Hall, 3 Denio, 375. Here in the present case Tappan might recover from plaintiff the value of services, less necessaries furnished, without regard to the alleged .contract between them. The contract, then, was no more binding because it was for necessaries, and the plain I iff could not enforce it upon that ground.

Second. The plaintiff insists that infancy is a defense personal to tile infant, .■and therefore that this defendant cannot set it up. That statement of the principle is rather broad. We may quote from Beardsley v. Hotchkiss, ubi supra: “As to contracts purely executory, it must be shown that the infant ratified them after he became of age before they can be enfori ed against him. As to contracts executed, such as deeds óf land or conveyances of personal -property, they will generally be deemed to be ratified * * * unless they ibe disaffirmed by the infant before he arrives at age, or within a reasonable time thereafter. She [the infant] did not disaffirm the contract in her lifetime, and left it in full force at her death.” Of course, if the infant has ratified or has failed to disaffirm, as above particularized, at age, others cannot treat the contract as void. In the present case Tappan is still a minor, and has not ratified and cannot ratify or fail to disaffirm, as above stated. Furthermore, it is not here a question of defense to a contract. The plaintiff claims property as to which he says he has been injured. Then he must show the propeity. If he has no title to the property he cannot recover for the inj'ury. What, then, is the property of the plaintiff which he says has been injured? Fot the care and medical attendance which he has kindly afforded Tappan, because, as we have seen already, Tappan is liable to pay the value of this. Fot the value of board and clothing which he has furnished, for, as above shown, that can be set off against any claim which Tappan might make for compensation for services. The only property which he can claim is the right to Tappan’s services, of which he avers that he has been deprived for two months. Then the question must arise, had he a valid title to those services? We have already seen, in the case of Baum v. Stone, that, while the plaintiff is entitled to compensation for necessaries furnished, he is not entitled to enforce as valid the specific contract made in relation thereto; that is, Tappan is not legally bound to render those services for the necessaries furnished. If he renders services he is entitled to their value. If he receives necessaries he is bound to pay their value. But the contract of services for necessaries and $100 is not binding; hence the plaintiff has no property therein. When Tappan shall arrive at 21 the plaintiff’s rights will be simply to be paid for board, clothing, medical care, etc., and his liability will be to pay Tappan what his services were worth. How can Tappan’s intoxication affect that matter? See Medbury v. Waltrous, 7 Hill, 110. We cannot see, therefore, that the plaintiff has been injured in property; for property must be something which one legally owns; not that to which he has only a moral claim, or which another person will probably permit him to have.

This view seems conclusive of the case. But another point is urged, viz., that, irrespective of Tappan’s infancy, the contract was void by the statute of frauds, and therefore the plaintiff cannot recover. The plaintiff’s answer to this is similar to what was above, viz., that no one but the parties and privies to a contract can take advantage of this statute. Fow, it is undoubtedly true that the parties to a contract, void by the statute of frauds, may perform it if they choose, and that, when they shall have performed it, no one else can allege its invalidity. The plaintiff also urges that, where one party has been prevented from performing such a void contract by the fraudulent act of some third person, such third person is liable for damages caused by his act. Rice v. Manley, 66 N. Y. 82, and similar cases. If this were an action against the defendant at common law for damages occasioned by some fraudulent act, by which defendant had prevented Tappan from performing his contract, there would be more analogy with the cases cited. But plaintiff has no cause of action at common law, and his statutory action is limited to injury to property. Take this word in its broadest meaning, as including things in possession and things in action. Then what are things in action or dioses in action? “Bights to receive or recover a debt, or money, or damages for breach of contract, or for tort connected with contract.” Bouv. Law Dict., under “Property” and “Glioses in Action.” If we turn to the Code, § 3343, for definitions of its own use of the word we find: “Injury to property is an actionable act, whereby the estate of another is lessened, other than a personal injury or breach of a contract.” “Property includes real and personal pioperty.” “Personal property includes money, chattels, things in action, and evidences of debt.” Certainly the plaintiff was not injured as to any property in possession. Was he injured as to any chose in action? Fot unless he had a legal claim, and he had none. There is sometimes a cause of action where there is no injury to property, as, for instance, in slander and thelike. But the statutory cause of action is confined to injury to property,— person'and means o£ support not being now in question; and we are of opinion that the plaintiff had no property which was injured. The judgment should be affirmed, with costs.  