Brookmire v. Monaghan , 22 N.Y. Sup. Ct. 16 ( 1878 )

Per Quriam :

The complaint in this action asks damages only by reason of the death of plaintiff’s husband, which death is alleged to have been caused ■ by intoxication by liquors sold the deceased by defendant. This court has heretofore decided, in Hayes v. Phelan (4 Hun, 733; 5 id,, 335), that such damages are mat recoverable under the act of 1873. That decision must control us in this department until the Court of Appeals shall have determined it is erroneous, although a different view has been expressed in the fourth department, iu Jackson v. Brookins (5 Hun, 530).. Proper ' exceptions were taken to the evidence, tending to establish a cause of action outside of the allegations of the complaint. The motions for a nonsuit also presented the same question. We think, in the reception of such evidence, and in refusing the motions for a non- ' suit, the learned judge was led into error, whereby a substantially new cause of action was allowed to bo established and sustained by the verdict of the jury; and, for this reason, we. think a new trial should be granted, costs to abide the event.

Present — Learned, Boardman and Tappan.

New trial granted, costs to abide event.