The action is brought pursuant to section 16 of the Civil Rights Law, commonly called the “ Dram Shop Act.” As far as material to this action, the act provides that any person injured by an intoxicated person by virtue of his intoxication may recover for those injuries against any person who unlawfully sells liquor to the intoxicated person which either causes or contributes to his intoxication.
The facts are that on the evening of February 2, 1960, the plaintiff, in the company of a man named Taylor and another *81couple, went to a cafe called “ The Shoals ”, operated by the defendant. There the party danced and drank from 9 p.m., when they arrived, until about 1 a.m. of the following morning, when they left. It appears that the party had four rounds of drinks together, and after that there was some disparity between the consumption of the various members. As far as the plaintiff is concerned, her testimony was that after her fourth or fifth drink she lost count and some time and some drinks later she fell asleep. It appears that Taylor continued to drink, and the jury was justified in finding that defendant’s bartender continued to serve him after it was obvious that he was intoxicated. When the party left, plaintiff was put in Taylor’s car by the other couple, with the expectation that one of them rather than Taylor should drive. But he eluded them and drove off before they had an opportunity to get in the car. Some distance away Taylor drove the car into the side of a building. He was killed and the plaintiff was seriously injured.
It is clear that the persons intended to be benefited by the statute are innocent third persons who are the victims of the acts of the intoxicated person. Though a literal reading of the statute might indicate otherwise, neither the intoxicated person nor, if he should be killed, the representatives of his estate could recover (Scatorchia v. Caputo, 263 App. Div. 304; cf. Moyer v. Lo Jim Cafe, 19 A D 2d 523, affd. on other grounds 14 N Y 2d 792). We believe that the same rationale would and should bar one who was a participant in the same drinking bout which produces the intoxication. Our attention has not been called to any decision in this State where the question has arisen. It has, however, arisen in three States with statutes similar to our own.
In Morton v. Roth (189 Mich. 198) the plaintiff and one McMahon made a tour of saloons, alternately treating each other until both were intoxicated. Subsequently plaintiff was injured through McMahon’s management of the car. Under a statute almost identical with that under review, the court said (p. 202): " In my opinion, he [plaintiff] is not an ‘ other person ’ within the meaning of the statute sued upon, and the ruling and direction complained about were right.” The ruling referred to was the direction of a verdict for the defendant.
The Superior Court of Connecticut reached a similar conclusion, saying: ‘ ‘ It cannot be said that the statute contemplates giving a remedy to one who joins and participates in and contributes to the violation of it.” (Cookingham v. Sullivan, 23 Conn. Sup. 193, 196.)
*82In both of these cases the intoxicated persons and the injured plaintiffs who drank with them were men and all contributed toward paying for the liquor. This, however, is not a controlling feature. A woman companion who participates in the spree is likewise not a person intended by the statute to be a beneficiary. The question was considered in James v. Wicker (309 Ill. App. 397) which, for frequent and out-of-Sta-te citation, appears to be the leading case on the subject. The court said (pp. 405-406): ‘ ‘ In the instant case we think the evidence shows plaintiff, Laughlin, and the other two persons were more or less under the influence of liquor when they left the tavern and while obviously plaintiff did not purchase any of the liquor, we think she was a ‘ willing party ’ not free from ‘ complicity ’ but on the contrary was a participant in what was done in that regard at the tavern and not an innocent person, who alone, is entitled to recover under the statute.”
Upon plaintiff’s case the complaint should have been dismissed. Nevertheless, we deem it advisable to call attention to errors in the charge, both of form and substance, which in any event would necessitate setting aside the verdict. The court treated the action as if it were one in negligence. It is not (Moyer v. Lo Jim Cafe, supra). Neither negligence nor contributory negligence is a factor. The jury was told that if plaintiff lapsed into unconsciousness prior to her entry into the car she would not be chargeable with negligence, whereas otherwise she could be found to have consented to ride with the intoxicated Taylor. That is not the test. She is barred if she is a participant in the process by which Taylor became intoxicated, and she is not exonerated by the fact that she herself had reached a state of intoxication prior to the accident. As to form, the court made an unnecessarily elaborate presentation of the facts,, including a detailed review of the medical testimony which could only be prejudicial.
The judgment should be vacated and the complaint dismissed on the law and the facts, with costs and disbursements to the appellant.,
Rabin and Eager, JJ., concur with Stevens, J.; Steuer, J., dissents in opinion in which Breitel, J. P., concurs.
Judgment affirmed, with $50 costs to the respondent.