Mitchell v. Shoals, Inc.
| Decision Date | 15 November 1965 |
| Citation | 48 Misc.2d 381,264 N.Y.S.2d 865 |
| Parties | Yvonne L. MITCHELL, Plaintiff, v. The SHOALS, INC., Defendant. |
| Court | New York Supreme Court |
Fuchsberg & Fuchsberg, New York City (Marvin Lechtman, New York City, of counsel), for plaintiff.
Schaffner & Furey, New York City (John P. Carson, New York City, of counsel), for defendant.
Plaintiff herein in an action pursuant to section 11-101 of the General Obligations Law (The Dram Shop Act) recovered an aggregate verdict against defendant in the sum of $30,500, of which pursuant to court instructions, the jury allocated $27,500 as actual damages and $2,500 as exemplary damages. By separate motion after trial, defendant seeks a $6,000 reduction in the amount to be recovered, representing the amount heretofore obtained by plaintiff as a result of settlement negotiations with the intoxicated tort-feasor's insurer.
The only New York decisions found in point are Playford v. Perich, 2 Misc.2d 170, 152 N.Y.S.2d 201, and Kinney v. 1809 Forest Ave., 7 Misc.2d 1, 165 N.Y.S.2d 149, both lower court decisions. In both cases, it was held in essence that the recovery against the 'dram shop' owner should not be reduced by the amount of any settlement received in prior actions against others, arising out of the same incident. As was stated in the Playford case, at page 173 of 2 Misc.2d, at page 204 of 152 N.Y.S.2d: 'there can be no diminution of the penalty in the way of damages fixed thereby [pursuant to the Civil Rights Law, section 16, now General Obligations Law, section 11-101], by applying in reduction or mitigation thereof, an amount of money fortuitously recovered in an action for wrongful death, either by way of settlement or a verdict therein'. In Kinney, the court stated (p. 4, 165 N.Y.S.2d p. 153), that 'the statutory action predicated upon the wilful violation of a statutory prohibition is wholly unrelated to any action for negligence and there can be no diminution of the penalty in the way of damages fixed thereby [citing Playford] * * *.'
While, as defendant argues, cases in other jurisdictions hold to the contrary, the above statements appear well founded when considering the intent of the statute is to discourage the unlawful dispensing of alcoholic beverages. The statute provides for the award of actual and exemplary damages. Clearly, insofar as the exemplary damages awarded are concerned, there should be no diminution, for the penal...
To continue reading
Request your trial
-
Anderson v. Comardo
...by way of settlement or a verdict therein." Id. at 173, 152 N.Y.S.2d 201. More recently, however, in the case of Mitchell v. The Shoals, Inc., 48 Misc.2d 381, 264 N.Y.S.2d 865, affd. 26 A.D.2d 78, 271 N.Y.S.2d 137 affd. 19 N.Y.2d 338, 280 N.Y.S.2d 113, 227 N.E.2d 21 the strict holding of Pl......
-
Fox v. Mercer
...be taken out of the hearing of the jury.4 Although the rationale of Playford v. Perich (supra) was later rejected in Mitchell v. The Shoals, 48 Misc.2d 381, 264 N.Y.S.2d 865, affd. on other grounds 26 A.D.2d 78, 271 N.Y.S.2d 137, affd. 19 N.Y.2d 338, 280 N.Y.S.2d 113, 227 N.E.2d 21, which r......
-
Smith v. Guli
...the Dram Shop Act are in the nature of a penalty; hence, they are not subject to the principle of contribution (Mitchell v. The Shoals, Inc., 48 Misc.2d 381, 264 N.Y.S.2d 865, affd. 26 A.D.2d 78, 271 N.Y.S.2d 137, affd. 19 N.Y.2d 338, 280 N.Y.S.2d 113, 227 N.E.2d CPLR 1401 codified the Cour......
-
Weinheimer v. Hoffman
...Act by the injured victim of their intoxicated customers were permitted to claim over against the vendees. And in Mitchell v. The Shoals, 48 Misc.2d 381, 264 N.Y.S.2d 865, affd. on other grounds, 26 A.D.2d 78, 271 N.Y.S.2d 137, affd. 19 N.Y.2d 338, 280 N.Y.S.2d 113, 227 N.E.2d 21, apportion......