Opinion
April 30, 1945.
Present — Close, P.J., Hagarty, Johnston, Lewis and Aldrich, JJ. [ 179 Misc. 915.]
Plaintiff appeals from an order setting aside a verdict of a jury in his favor and dismissing his complaint and from the judgment entered pursuant to said order. Order modified on the law and the facts by adding to the first ordering paragraph after the word "evidence" the words "and a new trial granted", and striking from such order the second and third ordering paragraphs, and as so modified the order is unanimously affirmed, without costs. Judgment modified on the law and the facts by adding to the first ordering paragraph after the word "evidence" the words "and a new trial granted" and by striking therefrom the second and fourth ordering paragraphs, and by striking from the third ordering paragraph the words "and it is further". As so modified the judgment is unanimously affirmed, with costs to the appellant to abide the event. We agree with the finding of the trial court that the verdict was against the weight of the credible evidence but it was error to dismiss the complaint. Paragraph (b) of subdivision 1 of section 101 Alco. Bev. Cont. of the Alcoholic Beverage Control Law should not be construed to hold that the contract herein involved is illegal. There is no proof in this record that the money that was deposited by Wollerstein and Saft belonged to the Arrow Beer Corporation and there is no evidence in this record to establish that that contract was made on behalf of the Arrow Beer Corporation.