Sisson v. Kahnert — 190 A.D. 945

Majority

p. 945

Second Department,

January, 1920.

Herbert S. Sisson, as State Commissioner of Excise of the State of New York, Appellant, v. Frank Kahnert and The Fidelity and Casualty Company of New York, Respondents.

Headnote

Intoxicating liquors — action to recover fines — verdict for defendants not against weight of evidence.

Appeal by plaintiff from a judgment of the Supreme Court in favor of defendants, entered in the office of the clerk of Westchester county on June 27, 1919, for $95.03 costs; and also from an order entered on July 21, 1919, which denied plaintiff’s motion for a new trial. The complaint sought to recover $960 fines for illegal sales of intoxicating liquors on three successive Sundays, namely, August 18, August 25 and September 1, 1918. No exceptions were taken to the court’s charge.

We find no basis for the claim that the State did not get a fair trial. Evidently the jury did not believe the State’s liquor agents and detectives. This was not because of their office and duties, but for the reason that their evidence contradicted in many respects what they had testified to at the previous trial. The verdict for defendants was not against the weight of credible evidence. The court’s conduct of the trial was entirely proper. The judgment and order are, therefore, affirmed, with costs. Jenks, P. J., Rich, Putnam, Kelly and Jayeox, JJ., concur. Judgment and order unanimously affirmed, with costs.