
    Fourth Appellate Department,
    May, 1905.
    Reported. 105 App. Div. 626.
    Patrick W. Cullinan, as State Commissioner of Excise of the State of New York, Appellant, v. Joseph McIndoo, and The Empire State Surety Company, Respondents.
    In the rear of defendant’s barroom was a room, sort of a dining-room, separated by a partition and swing doors. In this room curtains were suspended from rods extending across the room both ways, making small compartments thereof. The defendant and both of his bartenders denied selling liquor to the plaintiH’s special agénts on certain occasions, but had no recollection of the days in question, and testified as to custom.
    
      W. L. Thornton, for appellant.
    A verdict should have been directed in favor of the plaintiff, on the undisputed facts in relation to the condition of defendant’s barroom and similar adjoining rooms as to booths, curtains and open doors. Furthermore, the plaintiff’s proof as to Sunday traffic was not sufficiently controverted. The special agents of the State Commissioner of Excise engaged in the performance of their duties are in no sense interested witnesses. (Cullinan v. Rorphuro, 93 App. Div. 200; Cullinan v. Trolley Club, 65 App Div. 202.) The defendant and his bartenders are interested witnesses. Their negative testimony was not sufficient to meet the positive testimony of the special agents. (Cullinan v. City of New York, 60 N. Y. 133; Chapman v. R. R. Co., 14 Hun, 484; Tolman v. Syracuse, 27 Hun, 325; Taylor v. R. R. Co., 16 App. Div. 1; Cullinan v. Hosmer, 100 App. Div. 148.) There was no reason for denying conclusiveness to the testimony of the special agents. (Bank v. Weston, 172 N. Y. 258; Hull v. Littauer, 162 N. Y. 572.) Even though a verdict for plaintiff was properly denied, and case submitted to jury, the verdict rendered contrary to the law and the evidence should be set aside. (Code of Civil Procedure, § 999; Tracy v. Wheeler, 30 N. Y. 231; Barrett v. R. R. Co., 45 N. Y. 628; Cohn v. Goldman, 76 N. Y. 284; Oil Co. v. Ins. Co., 79 N. Y. 506; Tate v. McCormack, 23 Hun, 218; Young v. Stone, 77 N. Y. 395; Cullinan v. Kisselbrack, 43 Misc. 103; Luderman v. R. R. Co., 30 App. Div. 520.) The jury must have been improperly influenced. (Corning v. Nail Factory, 44 N. Y. 594; Schmidt v. Brown, 80 Hun, 183.) The judgment of the court below should be reversed and judgment directed upon the undisputed facts. (Benedict v. Arnoux, 154 N. Y. 715; Lopez v. Campbell, 168 N. Y. 344; Andrew v. Steamboat Co., 11 Hun, 490.)
    
      L. W. McIntyre, for respondent.
    The setting aside of a verdict is a matter of discretion, and unless abused, may not be reviewed on appeal. (Code of Civ. Proc. § 999; 83 Hun, 9; 83 Hun, 357; 82 Hun, 46.) A jury’s verdict will not be set aside if there is any evidence to sanction it. (5 Civ. Pro. 38; 3 Johns. 271; 4 Johns. 390; 4 Wend. 423; 2 N. Y. Supp. 302; 7 St. Rep. 687.) The mere fact that the evidence may strongly preponderate in favor of the defeated party does not authorize a new trial. (122 N. Y. 91.) Nor will the improper admission of evidence which could not have affectea the result. (5 Hun, 536; 14 Daly, 379, affirmed, 120 N. Y. 644.; After the refusal of a Trial Court to set aside a verdict, it will not be disturbed on appeal, because against the weight of evidence, unless so contrary to the preponderant proof as to startle by its absurdity, or to suggest suspicion of evil influence. (10 Misc. 655, affirmed, 155 N. Y. 634.) A verdict for defendant in a penal action will be set aside only for a misdirection or error of law. (57 How. Pr. 495; 15 Wend. 565; 17 How. Pr. 451; 10 John. 101.) A verdict for plaintiff ma,y not be directed by Appellate Court on reversal. (Code Civ. Proc. §§ 1224, 1317; 154 N. Y. 715.)
   Judgment and order reversed and new trial ordered, with costs to the appellant to abide event.

Held, that the finding of the jury was contrary to and against the weight of the evidence. All concurred.  