The sun. [volume] (New York [N.Y.]) 1833-1916, 1876-09-29
AN IMPORTANT DECISION.
Interpreting the Excise Law with Respect TO
the sale Of Liquor TO Minors.

NEwBURGH Sept. N.-The Hon. Stephen
w. Fullerton. OF the firm Of Fullerton, Knox &
Crosby, end County Judge OF Orange county, has
just rendered a written decision In one Of sew.
eral cases now on appeal before the County Court,
witch Involves important points in the Excise
laws OF this State. The appeal in the case, and
which decides others, Is made by Nathan Quit
man, n liquor dealer IN this city, VINO was sued
for damages by Mrs. Esther Campbell for selling
liquor to her minor son. aged about twelve years.
The Court IL Of the opinion that the Judgment
against Guttman should be reversed for two
reasons: First, because the plaintiff was per-
mitted TO recover for three penalties, when the
statute authorizes nut one.
The action was brought under section IL 81 the
Excise law Of 1851 which provides that no per-
son licensed to sell intoxicating drinks shall sell
or give away any such drinks to any minor under
the age OF eighteen years without the consent
of his father, mother, or guardian 1t makes It
penalty to do so. and provides that the often
der shall forfeit $40. to be recovered by the pa
rent or guardian of such minor. This, the Court
holds, does not give Mrs. ca npbell the right TO
recover three penalties. winch sue dil In lower
court. Three sales to the boy were proved. one
OF whsKey and two Of Lager beer. nut the CoIrt
thinks that uRder the abnve-natned section of
the 1861 Excise act but one penalty can De re-
covered.
" for each offence" and their presence IN other
hoctlonS OF the same act, Wntch provides penal
ties Tor selling liquor in violation Of law Is. the
Court says, significant, and leads to the cOnclu-
sion that such omission was Intentional. Sec
lions IL. H. and IL re spectively provide tnat who
ever shall offend against their provisions snail
forfeit "a ccrtein sum " for each offence" and II
being assumed that these words were p.rposely
omitted by the LEGISLATURE from section 10. II Is
clear that II was not intended to give 10 the
parry injured ten dollars FOR each aud ever, sale
N gid Of liquor. In support OF TINS construc-
II I'm a
similar cases decided by the Court Of Appeals,
among them, Fisher AIT. New York Central Rail
road Company, 20 n y, ga anu sturges AIT.
The second ground upon which Judge Fuller
ton reverses the iudsment against Guttman IL
that the Intoxicating drinks were sold not by
the defendant. but ny MS wife, ana during bis
absence, and without his knowledge or author
itv. II WAS proved that the defendant had a
liquor license, and II was not controverted tnat
he was not at home at he time OF the sales to
young Campbell. he Court holds that II is ne
ce-sary under the ~ ,tute, and SO decided by
tue Court Of Appeals IN Perry aRt. Edwards. a
N. Y, 81, that the party prosecuted must not
only appear to possess a license. but also That he
sold or gave away such drinks to minor under
IL Years Of age. On this point the Court saws (:
The boy campbell was. proved to be only tseve
the safe OF quor to Nun 1t might well be ued thai he
nsi iesson ,s believe lat me ad wac der elgh,
dunrs WIFE aud the defendant not present az tue
IT. Il Impossible TO say therefore, thai the dofendanf
knew or mad reason 70 lieye that The hoy Wa III er
knew or had reason 10 believe that the MINOR
va under That age. The guy know euge
must be proved against thu party sought 10
be charged. The wife incurred no peniity ia this
Tor making the sale, for the th.t she IT,
cense to sell The penalty prescribed Dy the section at
tacnes only when che sale Is made by person having
sucn license. II the wife m this had had license
aud hau Incurred the penalty, II may be that the hus
band would be liable therefor. but SUCH liability would
have attached % the marital relation. Il
man Engages in the business OF sening liquor without
license. ami sales made bg hrs vic clerk
bartender. he II naDe for the penalty afiix-
ed by section fourteen Of the act 1857 because
Il to be presumed under such circumstances that tuch
sales were made under ms direction or by bis authontv
But acuOu Ia ugut to recover the penalty
prescribed by section hftcen, IL must be proved that
sale gift made by the defendant win
knowledge assent, and that he the age the
minor hsd TO believe him TO be under the aye
OF eighteen years.
Tue Court says there other grounds on
does not deem II worth while To consider them
IL also saws that being compelled to reverse the
Judgment II does so very reluctantly. as the sale
Of Intoxicating drink to lad of twelve years
cannot be too strongly condemned.