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of taxation are matters of legislative discre-ing liquors could not be said, in its ordinary tion. In no aspect does it profess “to regu- meaning, necessarily to imply an intoxicatlate commerce,” nor in any proper sense has ing drink, unless such import has been given the legislation in question that effect. We to it either by statute or by the decision of therefore agree with the supreme court, and the courts. The word was first introduced think its order should be affirmed. All con- into our present excise law in 1873, c. 549, cur, ANDREWS, J., in result.

which prohibited the sale without license, in

quantities less than five gallons, of strong and (116 N. Y. 150)

spirituous liquors, wines, ale, and beer. The BLATZ V. ROHRBACH.1

expressed purpose of the statute was to reg(Court of Appeals of New York, Second Divis- ulate the sale of intoxicating liquors. Since ion. Nov. 26, 1889.)

the enactment of that law, this court decided, INTOXICATING LIQUORS-PROVINCE OF JURY. in Rau v. People, supra, that lager-beer could

In an action under Laws N. Y. 1873, c. 646, not be held to be an intoxicating liquor, withfor damages arising from the sale of intoxicating out proof of that fact. It was there said: liquors to plaintiff's husband, where the evidence “As to such well-known beverages as whisky, shows that "beer” was sold, whether or not it was an intoxicating liquor is a question of fact, for the brandy, gin, ale, and strong beer, the courts, jury. FOLLETT, Č.J., and BRADLEY and POTTER, without proof, acting upon their own knowlJJ., dissenting.

edge, derived from observation, will take noAppeal from supreme court, general term, tice that they are intoxicating, and will, second department.

therefore, require no proof of the fact. But L. L. Van Allen, for appellant. Charles there are, doubtless, intoxicating beverages H. Noxen, for respondent.

which are not so well known, and of whose

character the courts could not take notice, BROWN, J. The plaintiff is the widow of and more intoxicating beverages may yet be William T. Blatz, who committed suicide by discovered. As to all such, when one is hanging while in a condition of intoxication. charged with selling them in violation of law, The action is brought under the statute known there must be proof that they are intoxicatas the “Civil Damage Act,"3 and the plain- ing before a conviction can be had. Hitherto tiff had a verdict at the circuit, which was the courts have not been willing to take noaffirmed at the general term.

tice that lager-beer is intoxicating, but have The undisputed proof on the trial showed submitted the question, when controverted, that Blatz spent the evening preceding his to the jury, to be determined upon the evideath in the defendant's saloon, and that dence." The use of the word in the statute while there he drank two or three glasses of is in entire harmony with the views expressed beer. The court charged the jury that he in the case cited. The legislature recognized drank intoxicating liquors that evening at the fact, of the existence of which courts take defendant's saloon. The exception taken to judicial notice, that fermented liquor may or this part of the charge raises the only ques- may not be intoxicating. Some of it is, and tion that it is necessary to discuss on this ap- some of it is not. The sale of the former was peal, and we are called upon to decide whether forbidden, not so as to the latter. Proof the term “beer,” in the absence of all evidence could always be given on a prosecution for vioas to its quality and effect, imports an intoxi-lation of the law as to the character and effect cating beverage. “Beer,” as it is ordinarily of the particular drink sold under the name understood, and as it is defined in the diction- of “beer,” and thus the law would be executed. ary, is a “fermented liquor.” It is made it plainly' was not the intention of the legisfrom malted grains, with hops, or from the lature to prohibit the sale of the numerous extract of roots and other parts of various kinds of mild drink sold under the name of plants, as spruce, ginger, sassafras, etc. It “beer,” and I think it may be affirmed that is known under various names, and designat- the term, as now used, if it imports any particed as “ale," “ porter," "stout," "strong beer,” ular beverage, is generally understood to re“small beer,” “lager" "spruce beer,” etc. fer to "lager." This construction gives full The courts take notice that many of the effect to the law, and, under this expansive beverages soli under the name of “beer” are meaning of the word, the sale of all fermentnot intoxicating, while the stronger kinds, as ed liquors which are shown to be intoxicating ale, porter, and strong beer, are of an intoxi- will be regulated. To adopt the contrary cating character. Nevin v. Ladue, 3 Denio, view will violate the cardinal rule which is 437-450; Rau v. People, 63 N. Y. 277. It applied in all criminal prosecutions, viz., that would seem, therefore, that a term which in the prosecution must prove every fact essencluded both intoxicating and non-intoxicat- tial to establish the guilt of the person charged

with a crime. The fact of the sale of intox1 Reversing 42 Hun, 402.

icating liquor must be established. As to 2 The courts will take judicial notice of the fact strong and spirituous liquors, the courts take that lager-beer is a malt liquor, Netso v. State, (Fla.) 5 South. Rep. 8; and that it is intoxicating: notice of their intoxicating character, and Briffitt v. State, (Wis.) 16 N. W. Rep. 39; and that that stands in lieu of evidence. But, as to alcohol is intoxicating, Snider v. State, (Ga.) 7 S. the milder kinds of drink, proof of their intoxE. Rep. 631; but whether cider is a vinous or spiricating character must be adduced. If, thereituous liquor is a question for the jury, Com. v. fore, on the trial, on proof of the sale of beer, Reyburg, (Pa.) 16 Atl. Rep. 351. 3 Laws N. Y. 1873, c. 646.

without any evidence as to its character or

quality, the jury is to be instructed that it is opinions were delivered, in all of which it was of the kind that intoxicates, the court as- maintained that the question whether ale or sumes a fact not proven, and the burden of strong beer was within, the prohibition of showing that it is of a non-intoxicating char- the excise laws did not arise in the case; and acter is put on the defendant. As well might the case is an authority for nothing more a person be convicted of grand larceny by than that an adinission of selling "fermented proof of the theft of a watch, or of burglary beer" was not a violation of the statute in the first degree by proof of the breaking against selling strong and spirituous liquors. into an inhabited dwelling. But, as in the Any attempt to distinguish between “beer” first-named offense the value of the watch is and "fermented beer" would, I think, be a an essential ingredient of the crime, and in failure. Beer is a fermented liquor; and, unthe second it is necessary to prove that the less the particular beverage under consideraoffense was committed in the night-time, so, tion is a fermented liquor, it is not beer. with the sale of beer, it must be shown that Strong beer, small beer, and ale were always, it was of an intoxicating character; other- here and in England, recognized : 8 intoxiwise, there has been no violation of the law. cating drinks, as is shown by the very interThe court can indulge in no presumption in esting opinion of the chancellor in the case the case, except as to the innocence of the ac- cited, but the term “fermented beer" or cused; and, until it appears by sufficiency of “beer” includes them all, and many more, proof that the particular beverage sold was of besides, that are not intoxicating. The dean intoxicating kind, the presumption of in- cision in People v. Wheelock is not, therenocence controls the case. This rule applies fore, sustained by the authorities cited to not only to prosecutions distinctly criminal, support it. In Commissioners v. Taylor, 21 but to penal actions, where the plaintiff seeks N. Y. 173, the defendant was charged with to charge the adverse party with a penalty or selling “strong beer,” and this court held it forfeiture, and is particularly applicable in an within the meaning of the term “strong and action like the present, where the conse- spirituous liquors. People v. Wheelock quences may be as disastrous to a defendant was cited and referred to in the opinion, but as they appear to have been in this case. It I do not understand that it received the apis said, however, that by the decision of the proval of the court. Indeed, the opinion courts it has been decided that the word im- recognizes the rule laid down in Rau v. Peoports an intoxicating beverage. The only ple, supra, that a distinction must be made case that so holds, that I have been able to between stich liquors as are “capable of causfind, is People v. Wheelock, 3 Park. Crim. R. ing intoxication and those containing so 9, which was a decision of the general term small a percentage of alcohol that the human of the seventh district in 1855. The decision stomach cannot contain sufficient of the liqis based upon Nevin v. Ladue, 3 Denio, 43, uor to produce that effect," and cites spruce and same case in error, page 437, and on the beer, lager-beer, and others among the latter definition of the word in Webster's Diction-kind. Killip v. McKay, 13 N. Y. St. Rep. ary.

5, was an action for penalties under section In Nevin v. Ladue, the defendant was 13, c. 628, Laws 1857. The general term of charged with selling "ale, strong beer, or the fifth department held that the evidence fermented beer,” and admitted the sale, but in that case was susceptible of the construcclaimed that it was not prohibited by statute. tion that the “beer” that the witness drank The supreme court affirmed the conviction on had the taste and quality of ale or strong the authority of the definition of the word beer, and, although it might have been sold "beer” in Webster's Dictionary, which was under the name of "lager-beer,” possessed said in the opinion to be “a spirituous liquor, properties which were intoxicating, and upmade from grain,” etc. It may be that the held the verdict of the jury. It thus appears early edition of Webster's Dictionary so that none of the cases, except People v. defined the word, but the later editions Wheelock, have attempted to give to the word do not describe beer as a spirituous liq-“beer” a meaning imputing an intoxicating uor, but as a "fermented liquor.” Wor- liquor, but all recognize the fact that some cester's Dictionary gives the same defini- kinds of beer are intoxicating, and some are tion to the word. This decision was re- not. While it is not necessary to say that versed by the court of errors on the ground the word would include in its ordinary that the admission of a charge made in the meaning such mild drinks as spruce beer or alternative imputed nothing more than that ginger beer it certainly would include lagerthe defendant had sold "fermented beer,” beer, which is one of the best known, and and that that term, in the connection in probably the most extensively used, of the which it was used, covered various kinds of malted liquors. But, as has been shown, beer, which had long been in use in this lager-beer is not to be deemed intoxicating, country, under the different names of "spruce without the proof of the fact. I do not see, beer,” “ginger beer,” etc., which had never therefore, how, on proof of a sale of beer, been considered as intoxicating, either here the jury could say that it was strong beer, or or in England. There is nothing in the re- intoxicating beer. It might have been lagerport of the case to show that the court con- beer; and, if it was, they were not authorcurred in the views of the chancellor on the ized, on the proof, to find for the plaintiff. meaning of the word “beer." Three other the proper rule is to require, in all prosecu

cur.

tions for violation of the statute for selling family, consisting of his wife and several beer, proof of the character and quality of children. The jury were at liberty, upon the the particular beverages sold. Full effect is evidence, to conclude that there was no mothus given to the intention of the legislature tive on his part to take his life, except that to regulate the sale of those liquors which arising from a reckless condition resulting are intoxicating, and the rules that must ap- from his intoxication of that night, and that it ply to all prosecutions of a criminal character was the proximate cause of the act which are maintained. In this case, the jury might produced his death. The fact that he had atvery well have found from the plaintiff's ev- tempted a year before to commit suicide in idence that the particular beer drank by the the same manner, and that he at times was plaintiff's husband was intoxicating; but despondent, and had threatened to take his that question was withdrawn entirely from own life, were properly matters for considertheir consideration, and they were not per- ation upon the question of the cause or momitted to exercise their judgment upon it. tive of his act of self-destruction; but it canFor this error the judgment should be re-not, as matter of law, be said to have been versed, and a new trial granted, with costs controlling. The fact was for the jury to to abide the event.

determine, and their conclusion was permit

ted by the evidence. It is, however, conVANN, HAIGHT, and PARKER, JJ., con- tended by the defendant's counsel that the

evidence failed to prove that the husband ob

tained any intoxicating liquor at the defend. BRADLEY, J., (dissenting.) The complaint ant’s saloon that evening, or that he was inalleges a cause of action within the statute, toxicated when he left there, and therefore which provides that a wife injured in her the trial court erred in charging the jury that means of support, in consequence of the in- the plaintiff's husband drank intoxicating toxication of any person, shall have a right of liquors that evening at the defendant's saaction against any person who by selling or loon; to which charge exception was taken. giving away intoxicating liquors shall have This instruction by the court to the jury was caused the intoxication in whole or in part of founded upon the undisputed evidence that such person. Laws 1873, c. 646. On the the husband drank two or three glasses of evening of March 3, 1885, the husband of beer there at that time. The question raised the plaintiff, after having been at the saloon by that exception is whether, without othof the defendant, went to his place of resi- er evidence as to its quality or effect, it dence, and there, at some time during the may be assumed that the term “beer,” as night, committed suicide, by hanging himself. a beverage, imports intoxicating liquor. It The plaintiff charges that such act of self- is well understood that all spirituous liqdestruction of the husband was caused by his uors are intoxicating, and that all intoxiintoxication, produced by intoxicating liq. cating liquors are not spirituous. As comuors obtained by him at the defendant's monly used, the term “spirituous liquors” saloon, and that, in consequence of such in- does not embrace fermented liquors. The toxication, the plaintiff was injured in her latter may, or may not, be strong and intoximeans of support. If those propositions cating. Some of it is, and some of it is not were supported by the evidence, the conclu- so. Nevin v. Ladue, 3 Denio, 437. The sion that the plaintiff was entitled to recover question whether the words “intoxicating liqwas warranted. Volans v. Owen, 74 N. Y. uors” embraced lager-beer arose in Rau v. 526; Mead v. Stratton, 87 N. Y. 493; Neu v. People, 63 N. Y. 277. It was there remarked McKechnie, 95 N. Y.632. The plaintiff gave that the courts had not then been willing to evidence tending to prove that during his take notice that lager-beer was intoxicating. life she was dependent upon him for sup- and therefore proof of the fact was essential port, the ineans for which he provided by to justify a conviction for a sale of it in viohis services, and that her customary means lation of the statute. In the Revised Statof support were cut off by his death. The utes the liquors which it was penal to sell at propositions whether he was intoxicated, and retail, without license, were designated as whether his death was caused by, or was the strong, or spirituous. And in People v. consequence of, his intoxicaton, were ques. Wheelock, 3 Park. Crim. R. 9, it was held tions of fact, upon the evidence, for the jury that the word “beer,” in its ordinary sense, to determine. The plaintiff and her daugh- denoted a beverage which was intoxicating, ter testified that he came home intoxicated and came within the meaning of the words that evening, 20 minutes before 11 o'clock; “strong or spirituous liquors,” as used in the that, at a quarter past 12, the plaintiff went statute. That case was cited, with apparent to bed, leaving him lying on the lounge; and approval, in Commissioners v. Taylor, 21 N. that the next morning he was found hang- Y. 173, 175, in which Nevin v. Ladue was ing by the neck, dead. Those questions were cited and explained. And such was the view of submitted to the jury, and their finding up the court in People v. Hart, 24 How. Pr. 289. on both facts must, for the purposes of this There has also been some legislative import review, be deemed conclusive. He was a given to the word “beer" in its use to desigman 43 years of age, and, for aught that ap- nate a liquor used as a beverage. In the pears, was in good health, although some-“Act to suppress intemperance, and to reguwhat intemperate in his habits. Île had a late the sale of intoxicating liquors,” (Laws

1857, c. 628, § 5,) as amended by Laws 1873, | allow the building to fall, the licensees have the c. 549, § 3, the inhibited sale was applied to right to enter on the licensor's premises as much

as necessary to build up a new wall, to support “strong or spirituous liquors, wines, ale, or the licensor's building, to the extent required at beer.” The evident purpose of the statute the time of a revocation of the license, before they was to regulate the sale of intoxicating liq- can be compelled to remove the supports. uors, and those there expressly mentioned Appeal from common pleas of New York must be deemed within the intended legisla- city and county, general term. tive denunciation as such liquors. They are Action by Andres W. Ketchum and others treated by the statute as intoxicating liquors, against Henry Newman and Isadore Cohn. and, therefore, within its purpose to place A judgment for plaintiffs was affirmed by the regulated restriction upon their sale and the general term of the court of common disposition for use as a beverage. And it pleas, and defendants appeal. may be presumed that such legislative action Herbert A. Kingsbury, for appellants. and intent were founded upon the requisite Eugene 8. Ires, for respondents. information. Rumsey v. People, 19 N. Y. 41, 47. It is a fact, of which notice may be HAIGHT, J. This action was brought to taken, that there are fermented liquors and recover damages which it is alleged the plainmalt liquors which will produce intoxication; tiffs had sustained by reason of the destrucand, in view of the statute and cases already tion of their stock of millinery goods, conreferred to, the conclusion is fairly required sisting of silks, ribbons, velvets, flowers, that the word “beer,” unqualifiedly applied feathers, hats, etc., and for being deprived to liquor sold or given away to be used as a of the use of a portion of the basement of beverage, presumptively imports intoxicating the premises occupied by them, and of the liquor. It was so held in Briffitt v. State, 58 first floor of the rear of their premises. The Wis. 39, 16 N. W. Rep. 39. The exception plaintiffs were the tenants and occupants of to the charge of the court was, therefore, not the store known as “632 Broadway,” in the well taken. The jury having found that the city of New York. The defendants were the husband was intoxicated, they were permit- owners of the adjoining building, 630. In ted to also find that the intoxication was pro- February, 1882, the defendants took down duced in whole or in part by the beer drank their building, and commenced excavating, at the defendant's place, although they would for the purpose of rebuilding. Their conhave been justified, upon the evidence on the tractor, Goodwin, entered upon the premises part of the defendant, to have concluded occupied by the plaintiffs, and inserted nuotherwise. It was wholly a question of fact, merons needles or sticks of timber through for the jury. It did not appear that the hus- their basement wall, for the purpose of shorband obtained any liquor elsewhere that ing up and holding the wall of the building night, and the conclusion was warranted in position while the defendants excavated that he reached home about 10 minutes after for the foundation wall of their new buildhe left the defendant's saloon. The question ing, and built the same up so as to support whether or not the damages were excessive the walls of the plaintiffs’ building. The was disposed of in the court below. There defense was that the plaintiffs had given seems to us to be no further question pre- the defendants a license so to do, which besented by any exception for consideration on came a controverted question of fact in the this review. The judgment should be af- case. firmed.

The statute provides that “whenever exca

vations for building or other purposes on FOLLETT, C. J., and POTTER, J., concur. any lot or piece of land in the city and county

of New York shall be intended to be carried (116 NY. 422)

to the depth of more than ten feet below the KETCHUM et al. v. NEWMAN et al. curb, and there shall be any party or other (Court of Appeals of New York, Second Divis- wall wholly or partiy on adjoining land, and ion. Nov. 26, 1889.)

standing upon or near the boundary lines of ADJOINING LAND-OWNERS — LATERAL SUPPORT- such lot, the person causing such excavaLICENSES-REVOCATION.

tions to be made, if afforded the necessary Laws N. Y. 1882, c. 410, $ 474, provides that license to enter on the adjoining land, and whenever excavations on any lot in New York city not otherwise, shall at all times from the shall be intended to be carried more than 10 feet below the curb, and there is any party or other commencement until the completion of such wall wholly or partly on adjoining land, and stand-excavations, at his own expense, preserve ing on or near the boundary line of such lot, “the such wall from injury, and so support the person causing such excavations to be made, if same by a proper foundation that it shall reafforded the necessary license to enter on the 'adjoining land, and not otherwise, shall at all times main as stable as before the excavations were from the commencement to the completion of such commenced.” Laws 1882, c. 410, § 474. excavations, at his own expense, preserve such The trial court, in its charge to the jury, wall from injury, and so support the same that it shall remain as stable as before the exca- called attention to the provisions of this

stata vations were commenced.” Held, that where the ute, and submitted the question of fact as owner of adjoining land has granted a license, to whether or not the license to enter the under this statute, to persons making excavations, plaintiffs' premises and shore up the walls to enter thereon, and they have removed half of a party-wall, and inserted timbers to support the was in fact given. It further appeared that licensor's building, the removal of which would ' after the needles had been entered, shoring

up the main wall of the plaintiffs' building, this consent, the defendant Goodwin did enand after half of the wall had been taken ter upon the plaintiffs' premises, for the purdown, a notice was served by the plaintiffs pose of shoring up said wall, and did cause upon the defendants, requiring them to re- needles to be inserted for such purpose, and move the materials and men from their did go to considerable expense in the work of premises, and ordering them to discontinue shoring up said wall, and did said work with and put a stop to all work or labor on their reasonable skill and care, and that thereafter premises from that date, and notifying them the plaintiffs undertook to revoke their said not to enter upon the premises thereafter, permission by ordering said Goodwin, and or do any work or labor thereon. The court the other defendants, to remove the said neecharged the jury that, “while a license given dles at their own expense, such revocation by one party to anotber, where the licensee was ineffectual to this extent, that it did not spends money, and upon which license he require the defendants Cohn and Newman to acts, might not in every case be revocable, withdraw, at their own expense, the needles at the mere caprice and will of the licensor, thus put in." The evidence tended to show yet, in a case where the license is merely that the old foundation wall, for a space of permissive, and no actual damage has oc- about 60 feet, was a party-wall, upon which curred, a parol license may be revoked by both buildings were constructed. This wall, notice at any time. The original entry would below the needles, was entirely removed; the be lawful, but a continuance upon the prem- excavation made some 22 feet below the curb; ises after such notice constitutes a trespass. and a new wall built up, which became the I charge you, in accordance with the author- support for the wall of the plaintiffs' buildity laid down in the case of Murdock v. ing. As we have seen, at the time of the Railroad Co., 73 N. Y. 584, that a parol license revocation of the license, or the notice to may be revoked by the party granting it at remove was given, half of the old foundation any time, and, after such revocation, the wall had been entirely removed, and the licensee, or party for whose benefit the license plaintiffs' building was then supported by the was originally granted, would be a trespasser, needles, which had been inserted through the if he insisted in acting under it.”

wall. To remove them at that time would The defendants excepted to such portions endanger the lives of the workmen, and allow of the charge which hold “that, if a license the building to fall. We have carefully exwas given in this case to enter upon the amined the authorities upon which the court plaintiffs' premises and shore up their wall, and the respondents rely, and we have no such license might be revoked by the no- question to make in reference to the correcttice, and was revoked by the notice written, ness of the rule as stated in those cases; but alleged to have been served upon the defend- we do question their application to the case ants, if the jury find that it was served upon under consideration. In the case of Murdock them, even though the defendant Goodwin v. Railroad Co., 73 N. Y. 579, the license was had acted upon the license, and had inserted given by the owner of the land to the railneedles for the support of the wall, in pursu- road company to occupy the lands for its road. ance of that license;" to which the court re- It was not a grant of a permanent interest in plied: “I think I said it was revocable. I do the realty, but was simply a license to enter, not recollect that I said that it was revoked and was revocable at pleasure. So in the as a fact.” The defendants' counsel stated case of Mumford v. Whitney, 15 Wend. 380. to the court that he claimed that the tenant, It was a parol agreement that a party may having given a license, under the circum- abut and erect a dam upon the lands of stances, to do this particular thing, could not another, for the purpose of creating a waterby any possibility, as against the owner of power. It was held that a license was a mere the building, and against those who had ex-authority to enter upon the lands of another, pended money under the license, compel the and that a permanent interest in land could parties who had acted on their consent, at be transferred only by writing. In these their own expense, to withdraw the support cases a permanent right to occupy real estate from the wall, and cause the wall to fall, to was claimed under a license, in the absence which the court replied that he had left all of any written transfer or permit; but in the the evidence upon that point to the jury, case under consideration the license, if given, where it properly belonged; that he had stated was made pursuant to the statute to which the decision of the court of appeals as to a we have referred, and was authorized by it. parol license being revocable. The defend- When given, the defendants were required, ants' counsel then stated that, for the purpose “at all times from the commencement until of saving the point, he passed to the court a the completion of such excavations, at his written request to charge, which he would own expense, to preserve such wall from inconsider denied, so as to save the exception. jury, and so support the same, by a proper The request so passed to the court was not foundation, that it shall remain as stable as charged, and is as follows: “If the jury find before the excavations were commenced.” from the evidence that, prior to the defend- Here we have express statutory provisions ant Goodwin commencing to shore up the specifying what the defendants must do upon plaintiffs' wall, the plaintiffs orally consent-receiving the license, and it appears to us ed that he might enter upon their premises that, at least, up to the extent that the walls for that purpose, and thereupon, acting upon had been shored at the time the revocation of

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