(dissenting): -
' ■ Appeal from a judgment entered upon the report of a referee in favor of the plaintiff.'
The action is brought to recover damages under chapter 646, • Laws of 1873, the act known ás the “ Civil Damage Act.”
■ The complaint alleges that for ten years before the commence- ' ment of the action plaintiff had been a married woman, the wife of John Morenus; that in and before the month of May, 1875, she ’was the owner of a valuable horse, which was her sole and separate property; that in May, 1875, the defendant Crawford resided in •the village of Berkshire, Tioga county, in this State, and the 'defendant Hoag resided in the village of Richford, in said county; that each kept a hotel at his place of residence, and sold intoxi- • eating liquors;, that on the 15th day of May, 1875, “the said ' defendants wrongfully conspiring and intending to injure said •plaintiff, at their places of residence aforesaid, gave and' sold : intoxicating liquors to the' said John Morenus, the plaintiff’s said -husband, * * * which he drank, and from the effects of the :said intoxicating' liquors so sold and given to the plaintiff’s said husband, as' aforesaid, by' said' defendants, he became and was •intoxicated; and while so intoxicated, caused by drinking the ■•intoxicating liquors sold and given-to him by the said defendants, •and by reason of the said intoxication, he killed plaintiff’s said •horse, which was of the valué of one hundred and fifty dollars.”
Defendants answered the complaint separately by a general ‘deuial only. The referee reported, upon sufficient evidence given at the trial, that the defendants resided at the places'stated in the •complaint, and each kept a tavern at his place of résidence; that •oil the-15th day:6f May,i'1875, each separately'at his place of ■residence, and without conspiracy or concert between' them, by selling intoxicating liquors; '-caused-the intoxication'hi wholé or in' part *49of said John Morenus, said plaintiff’s said husband, such selling by each of them contributing to such intoxication; and in consequence of such intoxication of said John Morenus, said plaintiff’s said husband, the said horse of said plaintiff was then and there killed, whereby said plaintiff was injured in her property in consequence of such intoxication in the sum of $150; and, as conclusion of law, the referee held that the plaintiff had a right of action against each of such defendants for the value of said horse, and interest from May 15th, 1875, “and that no objection to the joinder of the cause of action against said defendants having been taken, either by demurrer or answer, said plaintiff should have judgment ” for such sum and costs, and judgment was rendered accordingly.
During the trial defendants objected to proving the sale of liquor until the conspiracy was first established; also to the proof of separate action of one defendant as against the other. These objections were overruled, and the referee’s ruling properly excepted to.
At the close of the evidence each defendant moved that the complaint be dismissed, because it did not state facts sufficient to constitute a cause of action against him; also for the reason that it did not state a cause of action against the defendants jointly; also because the plaintiff had failed to make out a cause of action against either of such defendants, or against defendants jointly. Also for the reason that there was a fatal variance between the proofs and the allegations of the complaint; that the complaint sets forth a joint liability, and the evidence shows, if anything, an individual liability; that plaintiff, to maintain her cause of action, must prove a joint liability. Each one of these requests were separately oveiTuled, and an exception taken.
According, to the finding of the referee, the sale of intoxicating liquors by the defendants to John Morenus was at different times and at different places, without conspiracy between them. In such a case a joint action would not lie. (Jackson v. Brookins et al., 12 N. Y. S. C., 530, opinion 534.) . Such joint action is not expressly given by the act, nor is the right to maintain it fairly implied from its provisions. The same point has been decided in the same way by the Supreme Court of Iowa, in Vary v. B. C. *50R. & M. R. Co. (42 Iowa, 246). The referee seems to have taken this view of the ease, but held that because no objection to the improper joinder of causes of action had been taken by demurrer or answer, defendants had waived their right to raise such objection at the trial.
The action was tried while the Code of Procedure was in effect, and the correctness of this position is to be judged by its provisions.
By section 144, it is provided that the defendant may demur to the complaint when it shall appear upon the face thereof * * * that several causes of action have been improperly united.
Here it did not appear from the face of the complaint that the different acts of soiling intoxicating liquor therein alleged were the separate acts of the defendants, but the complaint charged the acts as the joint acts of the defendants, pursuant to a wrongful conspiracy between them, with intent to injure the plaintiff.
The complaint would have been sufficient upon demurrer.
Section 147 provides that, when any of the matters enumerated in section 144 do not appear upon the face of the complaint, the objection may be taken by answer; and section 148 provides that, if no such objection be taken, either by demurrer or answer, the defendant shall be deemed to have waived the same, excepting only the objection to the jurisdiction of the court, and the objection that the complaint does not state facts sufficient to constitute a cause of action.
The cause of action alleged in the complaint is not a wrongful conspiracy to sell intoxicating liquors to plaintiff's husband, with intent to injure her. The referee properly treated such allegation as surplusage, and the failure of plaintiff to prove the same immaterial. He properly decided that the real cause of action was the sale or gift of intoxicating liquors by defendants to the plaintiff’s husband, whereby he became intoxicated; and, while in that condition, and by reason thereof, injured the property of the plaintiff.
The joint acts charged in the complaint were, in fact, as appeared by the proofs on the trial, the separate acts of the defendants, for which they were liable to separate actions by the plaintiff. (12 N. Y. S. C. R., 530.) This defense could have been raised by each of the defendants, by setting up the facts in *51his answer; not having thus alleged the improper joinder of two distinct, separate causes of action against each of the defendants, he waived the objection, and could not avail himself of it when the facts appeared at the trial.
The proofs showed a cause of action against each defendant, for which the referee properly gave judgment.
This principle was decided in the following cases: (Fosgate v. Herkimer Mfg. and H. Co., 12 N. Y., 580; Winterson v. Eighth Avenue R. R. Co., 2 Hilton, 389; Blossom v. Barrett, 37 N. Y., 436.)
The judgment should be affirmed, with costs.
Present — Learned, P. J., Boardman and Tappan, JJ.Judgment reversed; new trial granted; reference discharged; costs to abide event.