The civil damage act (Laws 1873, chap. 646) creates a cause of action unknown to the common law and a new ground of action. ( Volans v. Owen, 74 N. Y., 526; Mead v. Stratton, 87 id., 493 )
This cause of action is given for injuries defined by the act and resulting from intoxication. It is given not only against the person who sold the liquor, causing or contributing to cause the intoxication from which the injuries resulted, but also against the person owning or renting the building in which such liquor was sold, having knowledge that intoxicating liquors are to be sold therein. Such person may be sued severally or jointly with the person selling the liquor, and both are declared liable for “all damages sustained and for exemplary damages.”
The seller and his landlord were jointly sued in this action. A case permitting the finding of exemplary damages was made *311against the tenant. The landlord was shown, to the satisfaction of the jury, to have had knowledge that intoxicating liquors were to be sold in his building. The common law would not make him liable for exemplary damages, but the statute does. The test of liability that the statute imposes upon the landlord is not that he himself should have personally done any wrong, with respect to this particular sale of liquor, but that he should have sustained the relation to his wrong-doing tenant which the statute defines.
“ It is evident,” say the court, in Mead v. Stratton (supra), “ that th.e legislature intended to go in such a case- far beyond anything known to the common law, and to provide a remedy for injuries occasioned by one who is instrumental in producing, or who caused such intoxication.” And to make the remedy efficient and ample, it gave it jointly against both landlord and tenant, -and embraced actual and exemplary damages. Moreover, the act is entitled “An act to suppress intemperance, pauperism and crime.” To expose to these damages the landlord as well as the tenant, was manifestly the legislative instrument for the suppression of these evils.
Rawlins v. Vidvard (34 Hun, 205) was an action against the landlord alone. The court held that exemplary damages could not be awarded against him without proof of aggravating circumstances with which he was connected. The court did not hold, and had no occasion to hold, that if both landlord and tenant had been jointly sued, and a case warranting exemplary damages had been made out against the tenant, the landlord would not have been jointly liable with him."
The judgment should be affirmed, with costs.
Bookes, J., concurred.