
    First Appellate Department,
    March Term, 1902.
    Reported, 70 App. Dlv. 110.
    Patrick W. Cullinan, as State Commissioner of Excise of the State of New York, Respondent, v. Charles Furthmann and The United States Fidelity and Guaranty Company, Appellants.
    Request to go to the jury, when in time—Sale of liquor on Sundays—■ Proof that the place of the alleged sale was sublet by the licensee— Oral proof of the sublease—Any conflict of evidence takes a case to the jury—Willful false testimony—Impeachment of a witness.
    Where, upon the denial of a motion by the defendants for a dismissal .of the complaint, the plaintiff moves for the direction of a verdict, a request by the defendant to go to the jury upon certain questions, made after the court has announced its intention to direct a verdict in favor of the plaintiff, but before the verdict has been taken or entered, is made in time, and if the request be improperly denied, a new trial must be granted.
    In an action to recover the penalty of a bond given upon an application for a liquor tax certificate, in which the defendant’s liability is predicated on the fact that liquor was sold on Sundays in a basement under, and connected by a stairway with the licensed premises, it is error for the court to exclude evidence tending to show that the licensee had sublet the basement and that the sublessee was in possession thereof at the time that the sales in question were made.
    The sublease being only collaterally involved, secondary evidence of its contents is admissible.
    A conflict in the evidence upon a material point requires the submission of the case to the jury.
    Where a witness willfully testifies falsely to a material fact, the court •or jury may reject his entire evidence.
    The credibility of witnesses, whose testimony is substantially impeached or contradicted, is to be determined by the jury and not by the court.
    Appeal by the defendants, Charles Furthmann 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 New York on the 29th day of April, 1901, upon the verdict of a jury rendered by direction of the court.
    
      Terence J. McManus, for the appellant Furthmann.
    
      Moses Weinman, for the appellant United States Fidelity and Guaranty Company.
    
      Herbert H. Kellogg, for the respondent.
   Laughlin, J.:

This action is brought against the principal and surety to collect the penalty on a bond given on the application of appellant Furthmann for a liquor tax certificate, authorizing him to traffic in liquors on premises No. 2158 Eighth avenue in the city of New York for one year from the 1st day of May, 1898. The application was granted.

The complaint charged and evidence was offered by the plaintiff tending to show violations of the Liquor Tax, Law (Laws of 1896, chap. 112, as amended) on Sunday, August 28, and Sunday, September 4, 1898, as follows: (1) In selling liquor in the basement

of the premises under the barroom with which there was an open connecting stairway; (2) in having door from street-to said basement unlocked; and (3) in permitting persons, not members of the family of the licensee, to enter said basement where liquor was being sold. Other violations of the Liquor Tax Law on Sunday, September 11,1898, were charged and supported by evidence, as follows: (1) In selling liquor in the barroom; (2) in having the door from the street to the barroom unlocked; (3) in permitting others than members of his family to enter the barroom; and (4) in having a partition across the barroom in such manner as to obstruct the view of persons in the barroom from the street in front.

At the close of the evidence the defendants moved for a dismissal of the complaint, and upon their motion being denied, plaintiff moved for a direction of a verdict. The record shows that the court granted the motion on th.e ground that t-lie evidence as to selling in the basement on August twenty-eighth and September fourth was uncontroverted. After the intention of court to direct .a verdict was announced, but before the verdict was taken or entered, the defendants’ counsel asked to go to the jury upon the questions with reference to the alleged violations of the Liquor Tax Law and specifically upon the credibility of the special agents who gave the only testimony tending to show such violations. These requests were denied, and exceptions taken.

The requests to go to the jury were timely made, and if there was error in their refusal, a new trial must be granted. (Second National Bank v. Weston, 161 N. Y. 525.)

The verdict cannot be sustained on account of the alleged violations of the law on the first two Sundays, for the court erred, we think, in rejecting competent evidence offered by the defendants bearing upon that question. The plaintiff showed that the licensee had a lease of the basement and that on the Sundays in question liquor was being sold there by a bartender who on week days was in the employ of the licensee in the barroom above. A sign appeared over the basement “ Ohatauqua Club ” and Gustav Huegel, Billiard, Pool and Shuffle Boards.” The licensee testified that he had nothing to do with that business and that he did not at any time in 1898 sell or allow liquor to be sold in the basement. On the objection as incompetent the court precluded the licensee from answering a question as to whether he had in that year a sub-tenant in the basement and sustained a general objection to the question, “ Who did business in this basement? ” and to the question “ Who, to your knowledge, was in possession of the basement underneath the store in the month ■of August, 1898? ”

The licensee also testified that he entered into an agreement in writing with Huegel concerning the basement; that he did not have the writing; that he turned it over to the tenant who sue •ceeded him who was at the time of the trial a resident of Vermont and absent from the State. He was then asked to give the contents of that paper. This was objected to on the ground that it called for secondary evidence and the objection was sustained. The licensee was then asked if he received any money from Huegel in 1898 for rent of the basement. That was objected to generally. The objection ivas sustained and an exception taken.

We think it was error to exclude the evidence tending to show that the basement had been sublet and was in the possession of Huegel as the licensee’s tenant as that would tend to show that Furthmann was not responsible for sales made in the basement. As the lease was only collaterally involved, secondary evidence of its contents was admissible.

The respondent seeks to uphold the verdict principally upon other grounds than those assigned by the court, and the rule is invoked that the judgment may be sustained upon any ground appearing in the record that would have justified the action of the. court. (Scott v. Morgan, 94 N. Y. 508; Marvin v. Universal Life Insurance Co., 85 id. 278.)

We are further of opinion that the testimony of the three ■special agents relating to the violations of the law was sufficiently ■contradicted and impeached to require that their credibility be submitted to the jury. One of these witnesses, Sandford, testified to violations on the three days. Waterman claims to have accompanied Sandford and testified to violations on the first two-Sundays. Adee claims to have accompanied Sandford on the third Sunday and testifies to the same violations on that day. According to the testimony of these agents the licensee was in the-basement on the second Sunday and they talked with him about its being hot there, and he said if they would come around the following Sunday he would have a place open for them upstairs-where it would not be so hot. One of them testified that a stairway between the basement and saloon was open and there was no-door on it. They testified that on the third Sunday they saw the licensee outside the saloon and he directed them to the side door-entering the barroom; that upon entering they ordered drinks and were served by the bartender employed there on week days; that they passed down the inside stairway, which was open, to the-basement and back up again; that at this time the licensee had entered and was serving liquor to people in the barroom, and saw them served with some drinks; that there was a partition across the barroom as already described. The licensee testified that he never saw any of these witnesses; that he never sold or allowed liquor to be sold in the basement; that he did no business on Sundays, and did not sell or allow liquor to be sold on the licensed1 premises during the prohibited hours or on Sunday during that year, and that he never was in the saloon on Sunday; that there-was no partition across the barroom as described by plaintiff’s witnesses; that there was a door at the foot of the inside stairs cutting off communication with the basement, and that he personally closed and locked this door every Saturday night and it so remained until the following Monday morning. A carpenter was called and he testified that in the fall of 1897, on the employment of the licensee, he built a door at the foot of the inner-stairway to cut off communication between the basement and. saloon.

It is now well settled that a conflict in the evidence upon a material point requires the submission of a case to a jury. (McDonald v. Metropolitan St. Rway Co., 167 N. Y. 69.) It is. equally well settled that where a witness wilfully testifies falsely to a material fact the court or jury may reject his entire evidence. (People v. Evans, 40 N. Y. 1; Pease v. Smith, 61 id. 477; Deering v. Metcalf, 74 id. 501.) The credibility of witnesses whose testimony is substantially impeached or contradicted is to be determined by the jury and not by the court. (McDonald v. Metropolitan St. Rway. Co.; supra; Williams v. Del., Lack. & West. R. R. Co., 155 N. Y. 158; 11 Am. & Eng. Ency. of Law [2d ed.], 498; 1 Thomp. Trials, § 1038.)

For these reasons the judgment should be reversed and a new trial granted, with costs to appellants to abide the event.

Van Brunt, P. J., Patterson, O’Brien and McLaughlin, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellants to abide event.  