#### William W. Farley, as State Commissioner of Excise of the State of New York, Appellant, *v.*Bronx Bath and Hotel Company and The Harriman National Bank, Respondents.

First Department,

July 10, 1914.

Intoxicating liquors—violation of statute by selling liquors on Sunday without serving meals therewith — evidence of special agents — corroboration unnecessary.

Where in an action to recover upon a liquor tax bond upon the ground that the defendant violated the Liquor Tax Law by the selling of liquors on Sunday without serving meals therewith, it appears that special agents employed by the plaintiff were told by'the defendant’s waiter that they could not have a drink of whisky unless they bought something to eat, in response to which they stated that they did not want to eat but if it were necessary to buy something in order to get a drink of liquor they would do so, and that then sandwiches were brought and paid for, but not eaten, a violation of the law is established.

*460Special agents employed by Commissioner of Excise are not accomplices in the commission of a crime and it is not necessary to corroborate their evidence as a matter of law to establish the fact that the statute has been violated.

Dowling, J., dissented.

Appeal by the plaintiff, William W. Farley, as State Commissioner of Excise, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 11th day of February, 1914, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case, and also from the order entered in. said clerk’s office on the 9th day of February, 1914, dismissing the said complaint.

*Louis M. King,*for the appellant.

*Charles Goldzier,*for the respondents.

McLaughlin, J.:

Action to recover upon a liquor tax bond given by the respondent Bronx Bath and Hotel Company as principal. The complaint alleged the giving of the bond, the issuance of the liquor tax certificate and a violation of the bond by the selling of liquors on certain Sundays named without serving meals therewith. The answer put in issue the material allegations of the complaint, but at the trial the issuance of the bond and certificate was admitted. At the close of plaintiff’s case the complaint was dismissed upon the ground, as appears from the opinion of the learned trial justice, that the hotel company had not violated the law by selling the liquors referred to; and it was a fair inference from the evidence that the' State, through its special agents, unsuccessfully conspired to procure a violation of the law. Judgment was entered to this effect, from which the plaintiff appeals.

A very slight consideration of the evidence offered by the plaintiff will demonstrate clearly and conclusively that the defendant sold liquors on the days named to persons who were ' not guests of the hotel, and in direct violation of law.

Section 30 of the Liquor Tax Law (Consol. Laws, chap. 34 [Laws of 1909, chap. 39], as amd. by Laws of 1910, chap. 494) contains a general provision against the sale of liquors on *461Sunday by any one holding a certificate such as the one under consideration. The general provision, however, is made subject to an exception that the holder of such a certificate “ who is the keeper of a hotel may sell liquor to the guests of such hotel. ” It then defines a c *‘*guest of a hotel ” as “a person who, during the hours when meals are regularly served therein, resorts to the hotel for the purpose of obtaining and actually orders and obtains at such time, in good faith, a meal therein.”

As to the violation on the 8th of December, 1912, two special agents employed by the plaintiff testified that they went to the hotel about four-fifteen in the afternoon, entered what was known as the grill room, and took seats at a table; that no meals were then being served; that the tables in the room had covers upon them but were without knives, forks, spoons, napkins, salt or pepper, or things usually on a table when a meal is to be served; that as soon as they were seated a waiter came in and each asked to be served with whisky, in response to which the waiter said, “You will have to order something to eat; ” that he then went out of the room and returned with a menu which he placed upon the table; that one of the agents then said to him, “We want a drink of whiskey, we don’t want to eat,” and the waiter replied, “ I will have to serve you with something. Cheese and ham sandwiches are ten cents and chicken sandwiches are twenty cents; ” that one of the agents answered, saying, “Well, bring us anything in order to get a drink, we are not going to eat it any way; ” that the waiter then left the room and shortly thereafter returned with two ham sandwiches and a mustard pot; then left and shortly returned with two glasses of whisky and ginger ale; that one of the special agents paid twenty cents for the sandwiches and twenty cents for the whisky, and the other ordered and paid for two more glasses of whisky; that after drinking the whisky the witnesses left, leaving the sandwiches untouched upon the table.

The testimony of these, or other special agents, was quite similar as to each of the other alleged violations; that they were told by the waiter they could not have a drink unless they bought something to eat, in response to which the agents, or one of them, stated on each occasion that they did not want to eat, but if it were necessary to buy something in order to get a *462drink of liquor they would do so, and that then a sandwich for each one was bought and paid for, but not eaten.

This was the condition of the evidence at the close of plaintiff’s case. In my opinion it established, a clear violation of the Liquor Tax Law to which reference has been made. These agents, when they went into the hotel, went there not for the purpose of obtaining and actually ordering in good faith a meal, and the hotel company, acting through its agent, was so informed. It did not change the situation in any respect because sandwiches were ordered, which were paid for. The serving of the sandwiches was but a mere subterfuge resorted to by the hotel company to enable it to violate the law. Subterfuges of this character have been so many times declared to be no protection to the holder of a liquor tax certificate that the citation of authorities is hardly necessary. (But see *Cullinan*v. *Waldron,*82 App. Div. 637; *Matter of Cullinan [Young*Certificate], 93 id. 427; *Cullinan*v. *O’Connor,*100 id. 142; *Matter of Clement [Martin Certificate],*117 id. 5; *Matter of Farley [Gardner Certificate],*158 id. 851.)

The learned trial justice also erred in reaching the conclusion that the special agents were employed for the purpose of inducing the hotel company to violate the law. The duties of the special agents are prescribed by statute. They are confidential agents of the State Commissioner, and at his direction are required to investigate, among other things, whether the Liquor Tax Law is being violated. (Liquor Tax Law, § 7, as amd. by Laws of 1909, chap. 281.) If it is being violated, then they are to secure the necessary evidence to establish that fact, and when liquors are sold to them at their request — the purpose being to ascertain whether the law is being violated — it does not make them accomplices in the commission of a crime, nor is it necessary to corroborate their evidence as matter of law to establish the fact that the liquors were sold contrary to law. *(Cullinan*v. *Furthman,*187 N. Y. 160; *Clement*v. *Stratton,*136 App. Div. 83.)

My conclusion, therefore, is that the condition of the evidence at the close of plaintiff’s case was such that if the defendant had offered no evidence a verdict should have been directed in plaintiff’s favor.

*463It follows that the judgment appealed from should he reversed and a new trial granted, with costs to appellant to abide event.

Ingraham, P. J., Scott and Hotchkiss, JJ., concurred; Dowling, J., dissented.

Judgment reversed and new trial ordered, with costs to appellant to abide event. Order to be settled on notice.