
    Fourth Appellate Department,
    November, 1903.
    Reported. 88 App. Div. 620.
    The People of the State of New York, Respondent, v. William J. White, Appellant.
    
      Amasa J. Parker, for appellant.
    There was no evidence to show that defendant participated in the Sunday sales by his bartender, or that he knew of such sales, or consented or” assented to them. (People v. Utter, 44 Barb. 170.)
    The grand jury was improperly approached by Prof. Miller in his letter set forth in the case herein, as to the character of the People’s witnesses (People v. Sellick, 4 N. Y. Crim. Rep. 331). The motion to dismiss the indictment can be made even after trial and conviction, and defendant is not limited to sections 313 and 314 of the Code of Criminal Procedure. (People v. Clements, 5 N. Y. Crim. Rep. 288.)
    
      Harry T. Dayton, District Attorney, for respondent.
    The sale was undisputed. The People’s witnesses testified that they entered the room back of the barroom of defendant’s saloon, sat at a table and were served with whiskey and ale, which they paid for; while they were sitting there the defendant passed through to the barroom; the defendant testified that “he had no recollection of having seen these three men at his place ” that Sunday. The question as to whether defendant consented or assented to the sale was properly left to the jury.
    The master is liable for the acts of his servant within the scope of his authority; particularly where the violation is of a statutory enactment in the nature of a police regulation, that is mala prohibita, as distinguished from mala in se. (Westchester Co. v. Dressner, 23 App. Div. 215; Verona Central Cheese Co. v. Murtaugh, 50 N. Y. 314; Kirkwood v. Autenreich, 21 Mo. App. 73; Anderson v. State, 22 Ohio St. 305; State v. Brown, 31 Me. 522; State v. O’Connor, 58 Minn. 193.)
    The rule that a motion to set aside an indictment might be founded on grounds other than those stated in § 313 did prevail, but is no longer of any effect. (Laws of 1897, chap. 427; People v. O’Connor, 24 Misc. 361; People v. Phillips, 23 Misc. 567; People v. Glen, 173 N. Y. 395; People v. Meakim, 133 N. Y. 214.)
   Judgment of conviction and order affirmed.

All concurred.  