14 N.Y.S. 5 | N.Y. Sup. Ct. | 1891
The action was under the civil damage act, (Jjaws 1873, c. 646.) It was brought by the plaintiff as the widow of a person whose death was alleged to have been' caused by his own intoxication, produced in whole or in part by liquor sold to him by the defendant McGovern on premises rented to him by the defendant Edward B. Germain, as the agent and manager of the owner, James T. Germain. The three persons named were originally made defendants in the action, but James T. Germain has died since this appeal was taken, and Edward B. Germain, as his executor, has been substituted for him as defendant, and the defendant McGovern has made default. There was no motion for a new trial below, and the evidence bearing upon the material questions of fact was either conflicting or not contradicted by the defendants. We are therefore confined, on this review, to the consideration of exceptions taken by the defendants on the trial. The two Germains were brothers. James lived in Dutchess county, but owned the premises in Brockport, Monroe county, in which the liquor was found to have been sold. Edward lived in Brockport, and had the entire management and control of his brother’s property there, including the premises mentioned. Ten years or more before this cause of action arose he had rented the premises to one Guelph by a written lease which made no mention of the use to which it was to be put. Guelph occupied it four or five years as a saloon, and then sold out the business to McGovern, who continued it at the same place five or six years; more, with the full knowledge and consent of Edward Germain, to whom he paid his rent. There was no evidence that James Germain personally knew'
In respect to the defendant Edward Germain there can, we suppose, be no serious question but that he was, within the spirit as well as the letter of the
The jury had a right to consult the annuity tables in determining the probable duration of the joint lives of the plaintiff and her husband; and the instruction of the court in that respect was entirely correct. The expectancy of the joint lives of two persons is necessarily the same as that of the shortest lived of the two,—in this case that of the husband, since he was several years older than his wife. We find no exception in the case which vitiates the verdict of the jury, and that verdict determines all material facts in issue. The judgment must be affirmed. All concur.