This is an action brought under the act of 1873, known as the civil damage act. The action is founded on the alleged injury to *150tbe means of support of the plaintiff, whose husband fell from his wagon and was tilled, as the plaintiff alleges, in consequence of intoxication, to which, intoxicating liquor sold to him by the defendant Isaac, is alleged to have contributed.
The defendant Margaret is included as a defendant in the action upon the allegation contained in the complaint, that she owns the “ Globe Hotel ” where the liquor is alleged to have been sold, and that “ she rents the same to the said Isaac J. Stratton, or permits the same to be occupied as such hotel,” and had knowledge that intoxicating liquors were, and had been, and were to be sold in the said building so owned by her and occupied by said Isaac J. Stratton. On the trial the only proof offered to sustain the action against Mrs. Stratton, consisted of admissions made by the counsel for the defendants, that the title of the hotel in question was vested in the said Margaret; that she was the wife of the defendant Isaac and lived with her husband at the hotel, together with evidence tending to show that liquor was usually sold at the bar of the hotel. The act makes “ any person owning or renting, or permitting the occupation of any building or premises and having knowledge that intoxicating liquors are to be sold therein,” liable, severally or jointly, with the person who sells, for all damages sustained and for exemplary damages. It cannot be supposed that the legislature intended to inflict the severe consequences prescribed by the act, unless the owner, in some manner, had authorized the occupation for such purpose, in the language of the act “ having knowledge that intoxicating liquors are to be sold therein.”
The permission to occupy, with knowledge that intoxicating liquors are to be sold therein constitutes the basis of the liability imposed by the act. Neither the permission nor the knowledge aré to be presumed or inferred, but should be established by clear and satisfactory proof. It may be doubtful whether, considering the relations between the parties, the occupation by the husband of the premises belonging to his wife where he and she reside, is such a permission to occupy as would make her liable under the statute. However that may be, it is clear that she must have knowledge “ that intoxicating liquors are to be sold therein.” Of this there was no proof, and it cannot be inferred from the mere fact that she lived at the hotel with her husband. She is not *151shown ever to have witnessed a sale, or ever to have been present in the bar-room where the sales were made, ever to have given any consent that such sales should be made, or to have been informed that they were in fact made, or of any circumstance tending to induce any such belief.
As to constitutionality of civil damage act, see Baker v. Pope (2 Hun, 656). That damages resulting from death of intoxicated person cannot he recovered under, see Hayes v. Phelan (4 Hun, 783); contra, JaeJcson v. Brookins (6 Hun, 530). That landlord is liable for liquor supplied by the bartender contrary to his instructions, Smith v. Meynolds {ante, p. 128). That joint action against landlord and tenant will lie, Bw'ikólf v. O’Reüty {ante, p. 16). As to exemplary damages, and distribution of damages among parties entitled to sue, see M’cmMin v. 8ehermerhorn.{ante, p. 112).— [Rep.It may very well be supposed that though the wife of the defendant Isaac, and living with him in the hotel, her avocation occupied her in a different and perhaps distant part of the premises. The knowledge that her husband was keeping a hotel on the premises did not, necessarily, convey to her the information that he was engaged in selling intoxicating liquors there ; and the sale of such liquors may not only have been without her consent, but against her remonstrance. We do not think the evidence offered on the subject was sufficient to charge the defendant Margaret with the liability for the damages which resulted from the intoxication of the deceased, if any within the meaning of the statute.
This objection was distinctly taken by way of a motion for a dismissal of the complaint as to the defendant Margaret, which motion being denied, an exception was duly taken. We consider this ruling erroneous, and for that reason a new trial must be ordered.
The important position advanced by the counsel for the plaintiff as to the right to maintain the action at all under such circumstances, and which has been the occasion of such diverse judicial opinion, we do not touch, because the General Term in this department is understood to be committed on the subject, and in the hope that before this cause shall be tried again, we shall have some construction of the vague and uncertain statute on which the action is founded, and that it will receive an exposition at the hands of the court of last resort.
Judgment reversed and new trial ordered, costs to abide the event.
Present — MulliN, P. J., SMITH and Taloott, JJ.New trial ordered, costs to abide the event.