48 How. Pr. 144 | N.Y. Sup. Ct. | 1874
The plaintiffs bring this action, as administrators of the estate of Ira Ben tly, for the recovery of demands alleged to arise under the excise laws of the state. It appears by the complaint that the intestate was an habitual drunkard, and that the defendant, knowing that to be the fact, from the year 1864 until the time of his decease, in 1871, sold and delivered to him in the town of Cherry Creek, strong and spirituous liquors, to be drank by him, and which were drank by him, and which disabled him from following his ordinary pursuit and occupation, by means of which lie lost his property, and was otherwise injured. A. claim is also made for the moneys paid for the liquors sold, amounting to the sum of $300. The defendant, during the time mentioned, was a licensed vendor of strong and spirituous liquors.
To the complaint alleging these facts and demanding judgment for the injuries sustained, the defendant demurred for want of legal capacity in the plaintiff to sue, and because sufficient facts were not alleged to constitute a cause of action.
It is urged in support of the demurrer that it does not appear by the complaint that the liquor was sold within this state, but that position is unsound for the reason that it is alleged to have been sold in the town of Cherry Creek, and that is previously alleged to be one of the towns of the county named in the complaint, which is Chautauqua county.
And as he could maintain such an action, it would seem to follow that the same right exists in favor of his personal representatives. It was an injury to the interests of the intestate of a proprietary character, as distinguished from a mere injury to his person. And when the injury is such as affects the estate or property of the intestate, it may be redressed by an action in favor of the executors or administrators of his estate (3 R. S. [5th ed.], 746, § 1). This section includes all rights of action not contained in the succeeding section of the statute. And a demand of the nature of the present one is not within either of those exceptions. So far as the plaintiffs sue for the money received unlawfully by the defendant, the action can be sustained. But whether they can in any event recover anything beyond that, it is not necessary to consider in the disposition of the present demurrer.
The plaintiffs must have judgment on the demurrer, with leave to the defendant to answer in twenty days, on payment of the costs of the demurrer. •