106 N.Y.S. 1061 | N.Y. App. Div. | 1907
This is an action to recover upon a bond executed by Benjamin Apisdorf, a principal, and the defendant, as" surety, as a condition of issuing a liquor tax certificate upon the application of the principal. The condition of the bond was that “ If the said Liquor Tax Certificate applied for is given unto the said principal and the said principal will not, while the business' for which such Liquor Tax Certificate is given shall be carried on, * * * suffer or permit such premises to become disorderly and will not violate any of the provisions of the Liquor Tax Law, or any act. amendatory thereof or supplementary thereto, * * * » then the above obligation to be void; otherwise to remain in full force and virtue.” The complaint alleges that “ the defendant Benjamin Apisdorf, the holder of said liquor tax certificate, did, on each and every day from the 1st day of May, 1905, to and including the 31st day of December, 1905, and particularly on October 13, 1905, suffer and permit said premises described in said liquor tax certificate as those in which traffic in liquors was to be carried on, to become, be and remain disorderly; and during all of said period, and in and during the months aforesaid, did carry on and permit to be carried on and was interested in a traffic and business, the carrying on of which was and is in violation of law, viz., * * * as a place for persons to visit for lewd, obscene and indecent purposes, and by keeping and maintaining the same as a disorderly house and a house of ill-fame, and as a place of public resort by lewd women and prostitutes to solicit for illicit sexual intercourse whereby the decency of the neighborhood was habitually disturbed.” Notwithstanding the exclusion by, the court of' considerable competent.evidence, we think that the court should have directed a verdict for the plaintiff. The evidence offered by the plaintiff was nncontradicted, no evidence having been offered by the defendant. The witnesses for the plaintiff were police officers whose duty it was under section 315 of the charter (Laws of 1901, chap, 466, as amd. by Laws of 1905, chap. 621), to “ carefully observe and inspect * * * all houses of ill-fame or prostitution and houses where common prostitutes resort or reside, * * * ' and to repress and restrain all unlawful and disorderly conduct or practices therein.” The nature of the business that was carried on upon these premises with the consent and concurrence of the persons osten
I also think that, the method of submitting the casé to the'jury was misleading. The jury were instructed that they must find that the acts testified to were'done “ with the knowledge-and consent of tlie, holder of the liquor tax certificate that while it was not to produce witnesses to -swear that the holder of the liquor tax certificate actually- did know it was sufficient if he ought in tlie exercise of common sense and ordinary precaution to have known what was going on in the premises. The condition of the bond was that the holder of the liquor tax certificate would not suffer or permit the said premises to -become disorderly. To avoid liability he undertook to perform an affirmative act which was tprevent the premises from becoming disorderly and was liable upon the bond if he failed in this undertaking.. He could not by'absenting himself from the premises and'allowing those in charge-tó use the premises for disorderly purposes escape the consequences.
One other ruling of the court in answer to a request- of the plain-, tiff to charge require^ attention.. Counsel for- the plaintiff submitted several requests to charge, one'of which was that “the plaintiff, Maynard FT. Clement, in bringing this action, is an official of the State, and that lie lias no financial interest whatever in the bringing of this charge;” and to this the court replied, “I.will'charge that be is an official of the State. I will leave it to the jury to deter
This trial was conducted in a way that threw upon the plaintiff in bringing the action and upon the police officers who had testified as 'witnesses on behalf of the State an entirely unjustifiable suspicion which was not supported by any evidence in the case or by any inferences that could be drawn from the testimony.
There were other rulings which are subject to criticism, hut I think enough has been ■ said to show that -no verdict after such a trial can be allowed to stand.
It follows that the judgment appealed from must - be reversed and a new trial ordered, with costs to the appellant to abide the event. -■
Patterson, P. J., McLaughlin, Houghton and Scott,. JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.