Quain v. Russell

New York Supreme Court

Quain v. Russell

15 N.Y. Sup. Ct. 319

DecidedSeptember 15, 1876

StatusPublished

This text of 15 N.Y. Sup. Ct. 319 (Quain v. Russell) 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.

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Quain v. Russell, 15 N.Y. Sup. Ct. 319 (N.Y. Super. Ct. 1876).

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BoaedmaN, J.:

If the complaint were technically defective the more appropriate treatment would have been to have moved to make it more definite and certain, or to have allowed an amendment of course upon the trial. When the defendant answers, he impliedly admits the sufficiency of the complaint as to mere matters of form, and when the issues come down to trial before the jury, objections to the sufficiency in mere matters of form will be regarded with slight favor. But upon authority I think the complaint in the case was sufficient. (Peterson v. Knoble, 35 Wis., 80; Schneider v. Hosier, 21 Ohio, 98.)

I suspect, however, that the complaint was dismissed upon the broad ground that no right of action can exist against the vendor of liquors except in cases where it would also lie against the intoxicated person. The learned judge was inevitably led to such decision by the unfortunate manner in which Hayes v. Phelan, owing to an omission in the list of decisions sent to the reporter, was reported in 4 Hun, 733. As that report is corrected in 5 Hun, 335, it will be seen that no such principle was adopted by the court. Apart from such error, there appears to be no such doctrine sanctioned by authority. In Baker v. Pope (5 S. C. R., 102), the contrary view is taken, though it is obiter. In the leading case of Schneider v. Hosier (supra), it is distinctly held that the loss of means of support by the wife, through the intoxication of the husband, gives to the wife a cause of action against the vendor of the liquor. The exercise of legislative power in such respects is very ably considered by Dixon, C. J., in State ex rel. Henshall v. Luddington (33 Wis., 107).

[321]*321Although a new trial was granted the defendant in Dubois v. Miller (5 Hun, 332), it was not suggested that a cause of action founded on loss of support could not be sustained. The precise question has not, I think, been decided by any General Term in this State unless in Jackson v. Brookins (5 Hun, 530). But I think I am justified by the language of the statute, and the decisions and opinions of judges and courts in this State and other States, in holding that a cause of action was stated in the complaint.

It follows that the dismissal of such complaint was error, and a new trial should be granted, with costs to abide the event.

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BoaedmaN, J.:

If the complaint were technically defective the more appropriate treatment would have been to have moved to make it more definite and certain, or to have allowed an amendment of course upon the trial. When the defendant answers, he impliedly admits the sufficiency of the complaint as to mere matters of form, and when the issues come down to trial before the jury, objections to the sufficiency in mere matters of form will be regarded with slight favor. But upon authority I think the complaint in the case was sufficient. (Peterson v. Knoble, 35 Wis., 80; Schneider v. Hosier, 21 Ohio, 98.)

I suspect, however, that the complaint was dismissed upon the broad ground that no right of action can exist against the vendor of liquors except in cases where it would also lie against the intoxicated person. The learned judge was inevitably led to such decision by the unfortunate manner in which Hayes v. Phelan, owing to an omission in the list of decisions sent to the reporter, was reported in 4 Hun, 733. As that report is corrected in 5 Hun, 335, it will be seen that no such principle was adopted by the court. Apart from such error, there appears to be no such doctrine sanctioned by authority. In Baker v. Pope (5 S. C. R., 102), the contrary view is taken, though it is obiter. In the leading case of Schneider v. Hosier (supra), it is distinctly held that the loss of means of support by the wife, through the intoxication of the husband, gives to the wife a cause of action against the vendor of the liquor. The exercise of legislative power in such respects is very ably considered by Dixon, C. J., in State ex rel. Henshall v. Luddington (33 Wis., 107).

[321]*321Although a new trial was granted the defendant in Dubois v. Miller (5 Hun, 332), it was not suggested that a cause of action founded on loss of support could not be sustained. The precise question has not, I think, been decided by any General Term in this State unless in Jackson v. Brookins (5 Hun, 530). But I think I am justified by the language of the statute, and the decisions and opinions of judges and courts in this State and other States, in holding that a cause of action was stated in the complaint.

It follows that the dismissal of such complaint was error, and a new trial should be granted, with costs to abide the event.

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