
    Elizabeth O Rourke, Resp’t, v. John De Graw et al., App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 13, 1893.)
    
    1. Civil damage act — Liability of landlord.
    The liability of the landlord under the civil damage act of 1873 is to be determined by his knowledge at the time the lease was given.
    2. Same.
    Where the premises were leased for a restaurant, and the landlord then stated that he would not rent the place to sell liquor and beer in, and the lease was taken with that understanding, he cannot be held liable under the statute.
    Appeal from judgment in favor of plaintiff.
    Action under the civil damage act to recover for loss of support by reason of the sale to plaintiff’s husband of intoxicating liquors, Which caused him to neglect his work and finally resulted in his death.
    
      W. F. O'Neill, for app’lts ; W. J. Groo, for resp’t.
   Barnard, P. J.

A recovery was had in the case against the defendant DeGraw for creating an intoxication in whole or part which resulted in the death of Patrick O’Rourke in August, 1891. The defendant Piatt was made a defendant as the owner of the premises where the intoxicating liquors were sold. The allegations against him being that “ he rented said building and premises to the defendant DeGraw and permitted him to occupy and use the same during all of said term as a place for the sale of intoxicating liquors with the full knowledge that they were to be and were being so used.” The court of appeals, in a recent case, has held that the landlord’s liability under chap. 646, Laws of 1873, derived from the words creating the liability “ and having knowledge that intoxicating liquors are to be sold there,” is to be determined by his knowledge at the time the lease was given, and that he could only be made liable when it was shown that she knew when the lease was executed that the premises were to be used for the sale of liquor. Hall v. Germain, 131 N. Y., 536; 43 St. Rep., 916.

Under this rule there was a complete failure of proof against the landlord. DeGraw, the tenant, was called by the plaintiff, and testified that the premises were rented by him from Piatt “ for a restaurant,” and Piatt “ said he would not rent his place to sell liquor and beer in,” and that he took the premises with that understanding.

The case against the landlord stood solely on this proof when the plaintiff rested, and the case against him should have been then dismissed. It should have been also dismissed at the close of the evidence. It then appeared that the lease was given upon the condition that it was not to be used to sell strong drink in. That, although the landlord went monthly to collect his rent, he never saw any sale of liquor there. That the bar and its fixtures came from a former tenant That the beer pump was not used, but the beer sold was drawn from a faucet under the bar so as to deceive the owner. That the bar appearances would fit the restaurant as well as the ordinary liquor business, and the lease was expressly given upon the assurance that the bar would be kept to sell small and birch beer and cigars. If a liability would be established by knowledge subsequent to the lease that it was being violated, there was an entire absence of proof to show that.

The judgment against Piatt should be reversed, and a new trial granted, costs to abide event

Dykman and Pratt, JJ., concur.  