
    Maynard N. Clement, as State Commissioner of Excise of the State of New York, Respondent, v. Peter J. Fingerlin and The Bankers’ Surety Company, Appellants.
    Second Department,
    March 31, 1910.
    Intoxicating liquors — action for penalty—-illegal sales — erroneous direction of verdict — credibility of witnesses for jury.
    Where in an action to recover a penalty for .a violation of the Liquor Tax Law by illegal sales on Sunday made to persons not guests of the defendant’s hotel plaintiff’s witnesses, special agents, have testified that whisky was served to them in a decanter, but the defendant has given evidence that he owned no decanters and that the liquor was served in glasses, it is error to direct a ver- ■ diet for the plaintiff. This, because as the evidence contradicted that of the plaintiff’s witnesses, their credibility became a question for the jury.
    Appeal by the defendants, Peter J. Pingerlin and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the ITth.day of March, 1908, upon the verdict of a jury rendered by direction of the court.
    
      William 8. Gordon, for the appellants.
    
      Herbert H. Kellogg \Albert 0. Briggs with him' on the brief], for the respondent. - .
   Woodward, J.:

This is the familiar form of action by the State Commissioner of • Excise to recover the penalty of a liquor tax bond. At the close of the whole case the court, directed a verdict'in favor of the plaintiff, and the principal contention of the defendants is that this ruling was error; that sufficient evidence was introduced on. the part of the defendants to take the .case to the jury.

A liquor tax certificate was issued to the defendant Fingerlin, authorizing him to traffic in liquors at certain premises in Queens county for the excise year commencing. May 1, 1907; aiid the defendant company became surety upon liis bond, which was 'in-the usual form as required by section 18 of the Liquor Tax Law. (See Gen. Laws, chap. 29 [Laws of 1896, chap. 112], § 18, as amd. by Laws of 1903, chap. 486 ; since amd. by Laws of 1908, chap. 350, and revised in Consol. Laws, chap. 34 [Laws of 1909, chap. 39], § 16.) The complaint .alleges that the defendant Fingerlin violated the provisions of the Liquor Tax Law. by selling liquor on Sunday to persons who were not bona fide guests of his hotel, no meals having been ordered or served at the time such sales were made. The answers are that ■ the defendant Fingerlin conducted a hotel, and that no liquors were, sold on the days specified to . others than bona fide guests and. with inealSi ■ . ,

Three witnesses, special agents of the State Department of Excise,testified for the ¡plaintiff that, on Sunday, June 23, 1907, and again on the following Sunday-they ordered, paid for and drank whisky on the defendant Fingerlin’s premises; that -they did'not on those occasions-order and were not served with meals of any sort; and that they were'not guests at the hotel. They testified that the whisky was served in a small decanter.

On behalf of the. defendants it was shown that the room in which the sales were máde was a small dining-room with a kitchen adjoining, situated in the rear of the hotel barroom; that it was customary to serve meals there to persons ordering them, and that bills of fare were at all times on the table.. The waiter who made- the alleged illegal sales died before the trial, and the only testimony which contradicts that of the plaintiff’s witnesses was that of the defendant Fingerlin and his wife. The wife, testified in substance that she saw the plaintiff’s witnesses enter and take seats at one of the tables;. that the waiter handed them a bill of fare; that she did not hear, what was said between them; that the waiter went - to the bar and returned with whisky in glasses and sandwiches, which he placed upon the table.- To meet the testimony of the plaintiff’s witnesses that the whisky was served in a small decanter, this witness testifled that there were no small decanters on the premises at the time these sales were made. In this last statement she is corroborated 'by her husband.

We think the evidence of the defendants’ witnesses that the. whisky was served in glasses, and that there were no small decanters on the premises at the time, raised a question of fact that should have been submitted to the jury; and that the court erred in directing a verdict for the plaintiff. This evidence squarely contradicted that of the plaintiff’s witnesses that the whisky was served in a small decanter, and might have so far affected their credibility in the minds of the jurors as to have led to the belief that, as the sales could not have been made in the manner testified to by them, they were not made in violation of law. This would have resulted in a verdict for the defendants.

We think the rule'requiring the submission to the jury of questions involving the credibility of witnesses and the effect and weight of conflicting testimony, as declared in McDonald v. Metropolitan Street R. Co. (167 N. Y. 66), is controlling here; and that the judgment should be reversed and a new trial granted, costs to abide the event.,

Jenks, Bubb and Cabe, JJ., concurred ; Hibschbebg, P. J., not voting.

Judgment reversed'and new trial granted, costs to abide the event.  