Playford v. Perich
| Decision Date | 31 May 1956 |
| Citation | 2 Misc.2d 170,152 N.Y.S.2d 201 |
| Parties | Roscoe PLAYFORD, individually and as Administrator of the Goods, Chattels and Credits of Harry R. Playford, deceased, and Emma Playford, Plaintiffs v. Louis PERICH and Bruno Bemdi, individually and as co-partners, d/b/a Mount Melody Inn, and Mount Melody Inn, Inc., Defendants. Mary BOHAN, individually and as Administratrix of the Goods, Chattels and Credits which were of Rose Marie Bohan, deceased, Plaintiff v. Louis PERICH and Bruno Bemdi, individually and as partners d/b/a Mount Melody Inn and Mount Melody Inn, Inc., Defendants. Dorothy LA ROCCO, individually and as Administratrix of the Goods, Chattels and Credits which were of Agnes Gillespie, deceased, Plaintiff, v. Louis PERICH and Bruno Bemdi, individually and as partners d/b/a Mount Melody Inn and Mount Melody Inn, Inc., Defendants. |
| Court | New York Supreme Court |
Napoletano, Kelly & Saccoman, Kingston, for plaintiffs Roscoe Playford and another.
Flanagan & Ortale, Kingston, for plaintiffs Mary Bohan, individually, and others, and Dorothy LaRocco, and others.
Garfield, Harkavy & Fagan, New York City, for defendants Louis Perich, and others.
All three of the above entitled actions are on the day calendar for trial.
Defendant Perich moves for an order permitting him to amend his answer to plead payment to plaintiffs in each case of the sum of $6,000 by the insurance carrier of the owner of the motor vehicle in which the three decedents met their deaths, as both a complete and as a partial defense.
The objection that the motions are not timely is overruled, in view of the recent acquisition by defendant of the knowledge of the payments.
The present actions are to recover damages by virtue of the provisions of Section 16 of the Civil Rights Law, which implements Section 65 of the Alcoholic Beverage Control Law.
Section 65 of the Alcoholic Beverage Control Law, among other things, prohibits the sale of alcoholic beverages to any intoxicated person or to any person, actually or apparently, under the influence of liquor. Section 16 of the Civil Rights Law, so far as pertinent, provides as follows:
.
Each of these plaintiff, in a representative capacity, has received $6,000 in settlement of each of their causes of action, under Section 130 of the Decedents' Estate Law, against the estate of the deceased operator of the motor vehicle in which the passengers, of whose estates they were appointed administrators, were killed. The distribution of those settlements is provided for by Section 133 of the Decedents' Estate Law.
What the moving defendant here seeks is diminution of any recovery against him in these actions, by the amounts received in the death actions established by Section 130 of the Decedents' Estate Law.
The action created by Section 16 of the Civil Rights Law and its forerunner in earlier statutes is a creature of statute solely. It is not a common law action. It is penal in nature. It is in the nature of a civil fine, the amount of which is to be determined by a jury, and the proceeds of which are to go to a private individual or individuals, and not into the public treasury.
In Dowling v. Stephan, 206 Misc. 518, the court said, at page 520 et seq., 133 N.Y.S.2d 667, at page 671:
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