I dissent. The majority of the court rest their decision upon the weight to be given to the evidence of McPhillips and Fisher as to the sale of liquor to them on September 9,1900. It is said that the verdict should be set aside because it is against the weight of their positive evidence, “ unimpeached ” and “ uncontradicted.” This characterization does not seem to me to be borne out by the facts; and it is predicated upon the proposition that, because they were excise agents, they “ are not to be ranged in the same category of witnesses as persons hired to procure evidence, nor even as detectives.”
I am aware that the court has so stated in the two cases referred to in the opinion; but upon reflection I am not prepared to assent to this view. These men, as the evidence shows, were employed by the State and were actively engaged in an attempt to find the evidence upon which they could break Rorphuro’s license; and their interest and zeal in this direction are abundantly established by this record, because, apart from their former attempts, it appears that on this particular date they endeavored on four separate occasions to tempt Rorphuro, by ordering liquor without a meal, to violate the law. These witnesses do not rely at all upon any violation observed with respect to selling liquor without meals to others on *205that day, but, taking their evidence at its best, they would have the jury believe that they had succeeded, after four attempts, in obtaining liquor on that Sunday without some food being served at the same time. To say that this evidence is to be accepted without question, and is to be characterized as unimpeachable, is going further on the subject of credibility to be given to such evidence than any other authority to which my attention has ever been called. If the case stood upon their uncontradicted evidence, I still think there would be a question for the jury, because the animus of the witnesses, their undoubted interest in the quest which they were making, their manifest desire to obtain the evidence, and the persistency with which they continued upon the four occasions to tempt the waiters to furnish them with liquor without food, left the question of their credibility, it seems to me, one of fact for the jury. We have, however, as against their evidence, that given by the proprietor, the policeman and others on behalf of the owner of the hotel, which contradicts the statements of these two witnesses as to the alleged violations of that law on that day.
Rorphuro, against whom and his bondsman it is endeavored to recover the penalty of the bond because of a breach of its •condition, held á hotel license; and he had, therefore, the right, when serving food, to supply guests with drinks. This place •of Rorphuro’s was a resort patronized by the general ■ public, and principally by persons of moderate means. They are as much entitled to have a drink served with their meals or with food as the patrons of our larger hotels or clubs. The zeal and persistency of these agents in tempting this hotelkeeper on four separate occasions, if their testimony is'to be believed, to violate the law, displays a special interest in establishing a violation in this place, and their credibility was properly submitted to the jury.
Therefore, I do not think that the verdict is against the weight-of evidence, and there being peculiarly a question of fact for the jury, to be resolved upon their view of the credibility to be attached to the testimony of thé respective witnesses, we should not interfere with the verdict, and the judgment accordingly should be affirmed.
Van Brunt, P. J., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.