(concurring.) The trial judge charged the jury as - follows:
“The law gives the right of exemplary damages from the fact of causing the intoxication, in whole or in part, and the injury resulting, if the jury think at is a proper case to award exemplary damages. It is not a matter of course.”
It is settled that, in actions brought under the civil damage act, a plaintiff cannot recover exemplary damages unless, besides showing the sale of the liquor, there is evidence produced of some aggravating circumstance, or some fact besides the mere sale of liquor, justifying an award of exemplary damages. Reid v. Terwilliger, 116 N. Y. 530, 22 N. E. Rep. 1091. In this case, if the judge had instructed the jury that if they found that defendant sold liquor to the plaintiff’s husband after he became intoxicated, or found some other aggravating circumstance, they might award punitive damages, such an instruction would have been proper. But the jury were in fact instructed that the plaintiff might recover exemplary damages from the mere fact of defendant’s causing the intoxication of plaintiff’s husband, in whole or in part. I think the instruction erroneous, and hence that there should be a new trial.