
    Maynard N. Clement, as State Commissioner of Excise of the State of New York, Appellant, v. Federal Union Surety Company, Respondent.
    First Department,
    November 22, 1907.
    Intoxicating liquors—action against surety of certificate holder — evidence — erroneous exclusion of testimony showing that premises were disorderly — erroneous charge as to financial interests of Excise Commissioner.
    In an action by the State Commissioner of Excise to recover against the surety of the holder of a liquor tax certificate which is sought to be annulled because the principal allowed the premises to become disorderly, error in excluding competent testimony offered to show that the place was disorderly and used for immoral purposes is not cured, although most of the facts were proved by subsequent witnesses. .
    In such action it is error to charge that in order to give a verdict for the plaintiff the jury must find that the disorderly and immoral acts were done with the knowledge .and consent of the holder of the certificate. This,-because, as the bond required the principal should not suffer the premises to become disorderly, he was bound to perform affirmative acts in that respect, and could not by absence allow the premises to become disorderly.
    When there is no evidence that the Commissioner of Excise or liis witnesses had any financial interest in bringing the action, it is error to refuse to charge that he had no such interest and to leave it to the jury to determine- what interest, if any, he and his witnesses had in the prosecution and- to weigh their testimony accordingly.- As under the statute such Commissioner could have no financial interest, for the recovery goes to the State, the jury should not be • allowed to speculate as to whether the plaintiff, a public officer, had a pecuniary interest in the result.
    Appeal by the plaintiff, Maynard FT. Clement, as commissioner, etc., from a judgment of the Supreme Court in favor of .the defendant, entered in the office of the clerk of the county of Uew York on the 16th day of May, 1907, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 11th day of April, 1907, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Herbert H. Kellogg, for the appellant.
    
      Crowley Wentworth, for the respondent.
   Ingraham, J.:

This is an action to recover upon a bond executed by Benjamin Apisdorf, a principal, and the defendant, as" surety, as a condition of issuing a liquor tax certificate upon the application of the principal. The condition of the bond was that If the said Liquor Tax Certificate applied for is given unto the said principal and the said principal will not, while the business' for which such Liquor Tax Certificate is given shall be carried on, * * * suffer or permit such premises to become disorderly and will not violate any of the provisions of the Liquor Tax Law, or any act. amendatory thereof or supplementary thereto, * * * » then the above obligation to be void; otherwise to remain in full force and virtue.” The complaint alleges that “ the defendant Benjamin Apisdorf, the holder of said liquor tax certificate, did, on each and every day from the 1st day of May, 1905, to and including the 31st day of December, 1905, and particularly on October 13, 1905, suffer and permit said premises described in said liquor tax certificate as those in which traffic in liquors was to be carried on, to become, be and remain disorderly; and during all of said period, and in and during the months aforesaid, did carry on and permit to be carried on and was interested in a traffic and business, the carrying on of which was and is in violation of law, viz., * * * as a place for persons to visit for lewd, obscene and indecent purposes, and by keeping and maintaining the same as a disorderly house and a house of ill-fame, and as a place of public resort by lewd women and prostitutes to solicit for illicit sexual intercourse whereby the decency of the neighborhood was habitually disturbed.” Notwithstanding the exclusion by, the court of' considerable competent.evidence, we think that the court should have directed a verdict for the plaintiff. The evidence offered by the plaintiff was nncontradicted, no evidence having been offered by the defendant. The witnesses for the plaintiff were police officers whose duty it was under section 315 of the charter (Laws of 1901, chap, 466, as amd. by Laws of 1905, chap. 621), to “ carefully observe and inspect * * * all houses of ill-fame or prostitution and houses where common prostitutes resort or reside, * * * ' and to repress and restrain all unlawful and disorderly conduct or practices therein.” The nature of the business that was carried on upon these premises with the consent and concurrence of the persons ostensiblyin charge of the premises,- as disclosed by the testimopy of the police officers,,established that the defendant had suffered and permitted the house to become disorderly, and, therefore, there was a breach ' of the bend. ' There was considerable evidence offered and excluded .as to'what the police officers saw at the'premises that was clearly competent, and it is' difficult' to understand upon what theory the trial judge excluded it. The only answer of the respondent to the exclusion of this testimony was that most of the facts were proved by subsequent witnesses ; but the fact that- other witnesses were allowed to testify to facts which established the character of the house does not cure tli.e error in excluding competent testimony. No one can read this testimony and have the slightest, doubt as to the character of the business transacted, on these premises ,and that the liquor tax certificate holder had suffered and permitted the house to become disorderly in violation'of the conditions of the bond. • ' .

I also think that, the method of submitting the casé to the'jury was misleading. The jury were instructed that they must find that the acts testified to were'done “ with the knowledge-and consent of tlie, holder of the liquor tax certificate that while it was not to produce witnesses to -swear that the holder of the liquor tax certificate actually- did know it was sufficient if he ought in tlie exercise of common sense and ordinary precaution to have known what was going on in the premises. The condition of the bond was that the holder of the liquor tax certificate would not suffer or permit the said premises to -become disorderly. To avoid liability he undertook to perform an affirmative act which was tprevent the premises from becoming disorderly and was liable upon the bond if he failed in this undertaking.. He could not by'absenting himself from the premises and'allowing those in charge-tó use the premises for disorderly purposes escape the consequences.

One other ruling of the court in answer to a request- of the plain-, tiff to charge require^ attention.. Counsel for- the plaintiff submitted several requests to charge, one'of which was that “the plaintiff, Maynard FT. Clement, in bringing this action, is an official of the State, and that lie lias no financial interest whatever in the bringing of this charge;” and to this the court replied, “I.will'charge that be is an official of the State. I will leave it to the jury to determine what, if any, interest" he may have in the prosecution, as they may take into account what, if any, interest any of the other witnesses may have in the case, and weigh their testimony accordingly.” The only witnesses in the case were public officers who, in the performance of their duty, had observed the facts to which they testified. The plaintiff was not a witness. There was not the slightest evidence to show that either the plaintiff or any of the witnesses in the case had the slightest pecuniary interest in the controversy. Any amount for which the plaintiff had a verdict went to the State, and neither to the parties nor to the witnesses. The plaintiff was entitled to have the attention of the jury called to the fact that the plaintiff was a public officer whose duty it was to bring this action if he had reasonable ground to suppose" that the condition of the bond had been violated and that he could have no pecuniary interest in the result. He was acting solely in the interest of the State and would have been guilty of a violation of his duty if he had failed to prosecute the bond having competent evidence to show that its conditions had been broken. The record discloses that the plaintiff could have no possible pecuniary interest in the prosecution of the action, but under this instruction the jury were allowed to speculate as to whether this public officer, in the performance of his duty, had a pecuniary interest in the result, without the slightest evidence to sustain it, and where, upon the record, neither the plaintiff nor any of the witnesses could have the slightest possible pecuniary interest in prosecuting the action. It was the duty' of the court to uphold these public officers in the performance of their duty and to enforce the law against the holder of this liquor tax certificate and the surety upon his bond, and there can be no possible justification for the ruling in requiring the plajntiff and the police officers who were witnesses, for the plaintiff to justify their conduct, or subjecting them to the suspicion of a pecuniary' interest in the performantie of the duty which the law imposed upon them. The plaintiff and the police officers were engaged in the performance of duties imposed upon them by law. They were endeavoring to enforce an obligation in favor of the State. They had .proved a state of facts from which the one inference that could be drawn was that the owner of the liquor tax certificate had violated the law ; and yet it was left to the jury to determine what, if any, pecuniary interest the plaintiff might Lave in the prosecution of the action, and that the jury could also take into account what, if any, pecuniary interest any of the witnesses might have in the case, and wéigh their testimony accordingly, when, upon the record, neither the plaintiff nor the witnesses could have the slightest interest, pecuniary or otherwise, in the claim then being prosecuted.

This trial was conducted in a way that threw upon the plaintiff in bringing the action and upon the police officers who had testified as 'witnesses on behalf of the State an entirely unjustifiable suspicion which was not supported by any evidence in the case or by any inferences that could be drawn from the testimony.

There were other rulings which are subject to criticism, hut I think enough has been ■ said to show that -no verdict after such a trial can be allowed to stand.

It follows that the judgment appealed from must - be reversed and a new trial ordered, with costs to the appellant to abide the event. -■

Patterson, P. J., McLaughlin, Houghton and Scott,. JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  