¶1(dissenting):
¶2This is an action under the so-called “ civil damage act,” brought jointly against Terwilliger, the lessor of the premises, and McLaughlin, the lessee and keeper of the hotel, who sold the liquor.
¶3Terwilliger was in no way connected with the sale of the liquor. There was evidence sufficient to justify the jury in finding that McLaughlin sold the liquor under such circumstances that exemplary damages might be recovered against him. The only question here is whether exemplary damages could be recovered against *312Terwilliger, who had no connection with the sale of the liquor, and whose liability was only that imposed by the statute on the owner and lessor of the premises. Exemplary damages under this act can be recovered only when there are circumstances of abuse or aggravation proved. (Franklin v. Schermerhorn, 15 Sup. Ct. [8 Hun], 112.) Exemplary damages are allowed against a wrong-doer, and for examples sake, as, for instance, against a vendor without license. (Neu v. McKechnie, 95 N. Y., 632 at 636.)
¶4If Terwilliger had been sued alone no exemplary damages could have been recovered against him on the facts of the case. He had only leased the premises as a hotel, and this was a lawful and proper transaction. And even if he knew that liquors were sold, there, such sale was lawful, for the hotel keeper had a license. There had been nothing done by Terwilliger for which he should be punished to make an example, unless leasing property as a hotel should be punished. There were no aggravating circumstances with which he was connected. (Rawlins v. Vidvard, 41 Sup. Ct. [34 Hun], 205.)
¶5If, then, the plaintiff had brought several actions against Terwilliger and McLaughlin she might have recovered against the latter actual and exemplary damages. She could have recovered against the former only actual damages. There is nothing to the contrary in Bertholf v. O'Reilly (74 N. Y., 525). The liability under this act is wholly statutory. None such existed at common law. But there is some analogy between the relation of owner and tenant under this statute, and that of master and servant at common law.
¶6The servant may be liable for exemplary damages for his own wrong doing. The master is not then liable for exemplary damages ; but he may be so liable for some gross negligence or misconduct on his own part. (Fisher v. Met. El. R. R. Co., 41 Sup. Ct. [34 Hun], 433.)
¶7In other words, exemplary damages are given to punish a man for his own wrong, and not to punish him when he is liable only as superior.
¶8So in the case of owner and tenant under the civil damage act, the owner is, under certain circumstances, made by statute liable for damages. And he may be liable for exemplary damages. But, as *313said in. Davis v. Standish (33 Sup. Ct. [26 Hun], at 615), we must look to the common law to determine when punitive damages may be had. And the common law shows that punitive damages are inflicted (as the word indicates) by way of punishment; and, therefore, for a man’s own wrong doing; not for the wrong doing of another, for which he may, however, be liable to respond in actual damages.
¶9The aggrieved party, in cases like the present, may sue the owner and the vendor jointly or severally. The amount of damages which could be recovered against each, when sued separately, might be different. There might be aggravating circumstances against one or against the other. There is no joint act. The privilege of a joint action is only statutory.
¶10If Terwilliger, when sued separately, could not be made liable for exemplary damages, except on the ground of some wrong doing upon his own part, then he should not be liable for such damages when sued jointly.
¶11But the plaintiff urges that she has the privilege of bringing a joint action, and that there cannot be separate verdicts. She was not compelled to sue jointly. It is more reasonable that if she sues jointly she should be limited to a recovery only of actual damages against an innocent person, rather than that an innocent person should be punished by punitive damages for another’s malicious act.
¶12The doctrine of exemplary damages is illogical, though settled. It should not be extended to any more illogical conclusions.
¶13The judgment should be reversed.
¶14Judgment affirmed, with costs.