
    Supreme Court, New York Special Term.
    Reported. N. Y. L. J.,
    June 13, 1905.
    Patrick W. Cullinan, as State Commissioner of Excise, v. Elliott D. Paxson, et al.
   Greenbaum, J.:

It does not appear that the alleged newly discovered evidence could not, by the exercise of reasonable dillgence, have been obtained upon the trial of this action. As matter of fact, plaintiff affirmatively submitted proof upon the trial of chemical analyses that the liquor sold was to all practical intents an alcoholic beverage, the percentage of ingredients other than those found in most whiskies being infinitesimal, and the defendant contended it was a question for the jury to determine whether or not the article sold was in fact a medicinal remedy. Then, too, the affidavits giving the analyses of the several chemists as to the ingredients of Duffy’s Malt Whiskey have slight probative value, because of their omission to state the percentage of the alleged ingredients that tend to transmute the character of the article from an alcoholic beverage to a medicinal compound, l)ona fido. But even assuming that upon another trial it might be established that Duffy’s Malt Whiskey is really not substantially like the whiskies usually sold as beverages, but is a genuine medicinal production, the motion for a new trial must nevertheless be denied for the other expressed reasons.  