(dissenting):
The constitutionality of this statute is not an open question in this court. (Baker v. Pope, 9 S. C. N. Y. [2 Hun], 556.)
Does the present case come within the statute ? This does not give a right of action to a wife, as sueh. It gives it to “ every husband, wife,” etc., “ or other person who shall be injured,” etc. The test, then, whether the action can be maintained, must be whether the plaintiff' has been injured.
The language of the statute is, “ injured in person or property, or means of support.” I suppose that “ injured ” implies injury in the legal sense of the word, and in no other. If a person were, by virtue of this statute, to sue the vendor of liquor to recover damages for injuries done by the intoxicated purchaser to property, I suppose the plaintiff would have to show ownership of the property, and such a wrongful act done to it as would, without the statute, create a cause of action against some one. Otherwise, the plaintiff in such an action could not be said to have been injured. And hence he would have no right of action against the immediate perpetrator of the supposed act, and none against the vendor of the liquor.
The question then arises, has a wife such an interest in her husband’s ability to work, that she can recover damages for an act which incapacitates him from working ? If a man assaults another, and so injures him as to prevent him from performing the ordinary work by which he is accustomed to support his wife, can she maintain an action against the wrong-doer, on the ground that she is “injured in means of support?” I think not. She does not *322own her husband’s wages after they are earned, nor his capacity to earn them before. In like manner, it seems to me, that, where the husband’s inability to work has been caused by intoxication, the wife is no more, in a legal sense, injured in means of support, than she is so injured where the inability has been caused by violence.
If the plaintiff’s husband had earned a sum of money by his wages, and it had been taken from him, his wife could not have sued for it. The loss might have occasioned her much suffering, but not a legal injury. If it had been taken from him by an intoxicated person, could she recover, under this statute, damages against the vendor of the liquor ?
The wife has, I think, no legal interest in the earnings of her husband. Hence, to disable him from the power of working, inflicts no legal injury on her.
And it seems to me that this statute makes no change in the law in this respect, but that it only makes the vendor of liquor (the remote cause) liable for damages on account of those acts for which, without the statute, the intoxicated person (the immediate cause) would alone have been liable.
Present — LeabNed, P. J., JBoabdmajbt and Booees, JJ.New trial granted, costs to abide the event.