Amerman v. Kall

New York Supreme Court

Amerman v. Kall

41 N.Y. Sup. Ct. 126

DecidedOctober 15, 1884

StatusPublished

This text of 41 N.Y. Sup. Ct. 126 (Amerman v. Kall) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Amerman v. Kall, 41 N.Y. Sup. Ct. 126 (N.Y. Super. Ct. 1884).

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Opinion

Smith, P. J.:

The action was brought by the plaintiffs as overseers of the poor of the town of Wolcott, to recover penalties for selling intoxicating [127]*127liquors without a license. The defendant is- the wife of Charles Kail. The evidence tended to show that the liquors were sold and drunk in a building leased to the defendant, in which a saloon was kept, having a bar at which the liquors were sold and dealt out to customers by the drink, and that the business of the saloon was carried on by the husband as the agent of his wife, and the sales of liquor were made' partly by him as such agent, and partly by a clerk.

The evidence was enough, prima fade, to charge the defendant. Although the action is for a penalty it is a civil and not.a criminal action, and for its purpose a sale by an agent in the shop of his principal, or by a servant in the shop of his master, is prima fade a sale by the principal or master-. We so held in a similar ease against this same defendant in January last. (MS. opinion by Barker, J.; see, also, State v. Wentworth, 65 Me., 234; Commonwealth v. Nichols, 10 Metc., 259; State v. Brown, 31 Me., 520; Commonwealth v. Morgan, 107 Mass., 199; Smith v. Reynolds, 8 Hun, 128.)

The question whether such evidence would be sufficient to sustain an indictment for violating the excise law is not before us and we do not pass upon it. (See Riley v. State, 43 Miss., 397, 414.)

Aside from this we think there was evidence tending to show that the defendant was cognizant of the unlawful traffic carried on by her husband and authorized the same, which should have been submitted to the jury as the plaintiffs requested.

The judgment should be reversed and a new trial ordered in the Wayne County Court, costs to abide event.

Barker, Haight and Bradley, JJ., concurred.

So ordered.

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Smith, P. J.:

The action was brought by the plaintiffs as overseers of the poor of the town of Wolcott, to recover penalties for selling intoxicating [127]*127liquors without a license. The defendant is- the wife of Charles Kail. The evidence tended to show that the liquors were sold and drunk in a building leased to the defendant, in which a saloon was kept, having a bar at which the liquors were sold and dealt out to customers by the drink, and that the business of the saloon was carried on by the husband as the agent of his wife, and the sales of liquor were made' partly by him as such agent, and partly by a clerk.

The evidence was enough, prima fade, to charge the defendant. Although the action is for a penalty it is a civil and not.a criminal action, and for its purpose a sale by an agent in the shop of his principal, or by a servant in the shop of his master, is prima fade a sale by the principal or master-. We so held in a similar ease against this same defendant in January last. (MS. opinion by Barker, J.; see, also, State v. Wentworth, 65 Me., 234; Commonwealth v. Nichols, 10 Metc., 259; State v. Brown, 31 Me., 520; Commonwealth v. Morgan, 107 Mass., 199; Smith v. Reynolds, 8 Hun, 128.)

The question whether such evidence would be sufficient to sustain an indictment for violating the excise law is not before us and we do not pass upon it. (See Riley v. State, 43 Miss., 397, 414.)

Aside from this we think there was evidence tending to show that the defendant was cognizant of the unlawful traffic carried on by her husband and authorized the same, which should have been submitted to the jury as the plaintiffs requested.

The judgment should be reversed and a new trial ordered in the Wayne County Court, costs to abide event.

Barker, Haight and Bradley, JJ., concurred.

So ordered.

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41 N.Y. Sup. Ct. 126, Counsel Stack Legal Research, https://law.counselstack.com/opinion/amerman-v-kall-nysupct-1884.

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