
    First Appellate Department,
    April, 1902.
    Reported. 71 App. Dlv. 617.
    Patrick W. Cullinan, as State Commissioner of Excise of the State of New York, Respondent, v. Edward W. Austin, Defendant, Impleaded with the United States Fidelity and Guaranty Company, Appellant.
    At the trial, in answer to motion by defendant to go to the jury on the question of credibility of plaintiff’s witnesses, the plaintiff’s case being wholly made out by the testimony of special agents, the Court said:
    McLean, J.: “Reference being had by defendants’ counsel to the remarks of Judge Church in the opinion of the court in the case of Coley v. Adam, in which it spoke of the general rule stated by Justice Rapalyea in Lakewood v. The Western Union Telegraph Company, it does not seem to me there is anything in this case to warrant the court in submitting the question herein to the jury, because there does not appear to me to be any degree of improbability in the story told by the plaintiff’s witnesses ; nor has the credibility of those witnesses been impeached anywise upon cross-examination; the only fact which may be noted upon their examination upon their own statements upon the direct examination, is that they have testified to having procured this evidence under their occupation as special agents in performance of their occupation as special agents; and I, therefore, deny the defendants’ request to go to the jury.”
    
      Guggenheimer, TJntermyer & Marshall, for appellant, the United States Fidelity and Guaranty Company;
    The direction of a verdict was erroneous on two grounds:
    
      First. That inasmuch as the obligee contrived to bring about a breach of the condition of the bond, such breach could not be made a ground of forfeiture against the surety, and
    
      Second. That it was error for the court to deny said defendants’ request to go to the jury on the question of the credibility of the testimony of the special agents.
    
      Royal R. Scott, for the respondent.
    The evidence for the plaintiff was uncontradicted and unimpeached ; it was unshaken on cross-examination, and the court was bound to direct a verdict. (Simermeyer v. Roosevelt, 2 App. Div. 498; Cullinan v. Trolley Club, 65 App. Div. 202; Franklin Bank Note Company v. Mackey, 158 N. Y. 140; Lyman v. Harley, 65 App.. Div. 614; Dwight v. Germania Life Ins. Co. 103 N. Y. 341; Illston v. Evans, 27 App. Div. 447; Linkhauf v. Lombard, 137 N. Y. 417; Bulger v. Rosa, 119 N. Y. 459; Herring v. Hoppock, 15 N. Y. 409; Stevens v. Fisher, 19 Wend. 181; Hemmens v. Nelson, 138 N. Y. 517; Womburgh v. Cooper, 2 Hun, 428; Baylies’ Trial Practice, pp. 320-322; Improvement Co. v. Munson, 14 Wall. 442.)
    The propriety of directing a verdict bn uncontradicted evidence in actions on liquor tax bonds is also settled. (Lyman v. Shenandoah Social Club, 39 App. Div. 459; Lyman v. Gramercy Club, 39 App. Div. 661; Lyman v. Hayes, 43 App. Div. 623; Lyman v. Griffin, 43 App. Div. 623; Lyman v. Harley, 65 App. Div. 614.)
    The special agents, by purchasing liquor, did not procure and induce the defendant to violate the law. (People v. Smith, 28 Hun, 627; Commissioner of Excise v. Bacchus, 29 How. Pr. 23; 
      Lyman v. Oussani, 33 Misc. 409, rev’d on other grounds, 65 App. Div. 27; Lyman v. Harley, 65 App. Div. 614.)
   Judgment affirmed, with costs.

No opinion.  