23 N.Y.S. 963 | N.Y. Sup. Ct. | 1893
This action was brought to recover damages under chapter 646 of the Laws of 1873, known as the “Civil Damage Act.” The evidence tends to show that the defendant was'the owner of the premises, and rented them to one O’Leary; that intoxicating drinks were sold to Dennis Quinlen; that he became intoxicated, wandered upon the railroad track, and was run down and kill°ed by a passing train. The plaintiff is a daughter of the deceased, but was born one day after his death, and the question is as to her right to maintain this action. The act gives a right of action to every husband, wife, child, etc., who shall be injured in person or property cr means of support by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, against any person or persons who shall, by selling or giving away intoxicating liquors, have caused the intoxication in whole or in part of such person or persons, and any person or persons owning or renting or permitting the occupation of any building or premises, and having knowledge that intoxicating liquors are to be sold therein. The question, therefore, is as to whether the plaintiff is a child, within the meaning of this statute. She was, as we have seen, en ventre sa mere; and such a child, for the purpose of enabling it to take an estate, or for any purpose which is for its benefit, is regarded to be in esse if it should afterwards be born alive. Blackstone says such an infant is supposed to be born, for many purposes. It is capable of having a legacy or a surrender of a copyhold estate made to it. It may have a guardian assigned to it, and it is enabled to have an estate limited to its use, and to take afterwards by such limitation, as if it were then actually born. 1 Bl. Comm. 130. It has been held that the civil rights of such an infant are equally respected at every period of gestation; and it is clear that, no matter at how early a stage, it may be appointed an executor, is capable of taking as legatee or
The questions raised in reference to the repeal of the civil damage act by chapter 403 of the Laws of 1892 have been considered by us at this term of court in the case of Reinhardt v. Fritzsche, 23 N. Y. Supp. 958. See opinion by Haight, J. The judgment should therefore be affirmed. All concur.