I "CroRNELL University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN nEnoRY OP JUDGE DOUGLASS BOARDMAN FIRST DEAN OF THE SCHOOL By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS 3 1924 069 392 037 CJorn^U ICato irlyonl Sjtbrary The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924069392037 EXCISE LAW or THE State of New York WITH CIVIL DAMAG-E ACT, And all Statutes, Including 1880. WITH NOTES OF DECISIONS OF THE COURTS m AND FORMS. BY WILLIAM W. SAXTON, OOUNSELIOE AT LAW, CoMPELEB OP Tax Law op the State op New Yobk SECOND EDITION. NEVr YORK: S. A- WILDER & CO., LAW BOOKSELLERS AND PUBLISHERS, 95 IST^-SSAU STREET, 1880. Entered accordiug to Act of Congresa, in the year eighteen hundred and eighty, by WILLIAM W. SAXTON, in the office of the Librarian of Congress, at Washington, D. C. Preface to Second Edition, Since the publication of the first edition of the following work in 1873, many statutes have been enacted by the Legislature, and important decisions made by the Courts affecting the Excise Law. The incorporation of this matter has largely increased the size of the volume. All the Statutes relating to the Excise Law, and the Judicial Decisions, have been compiled down to and including the year 1880. The importance of the subject, and the favorable reception of the work have led to the publication of a second edition. W. W. S. Hudson, N. Y., Sept. 15, 1880. s Preface to First Edition. I present to the public the Excise Law of the State of New York down to and including all the amendments of 1873. The Legislators have done so much altering of the " Laws Regulating the Sale of Liquors," from 1857 to 1873, that it may be pardonable if those who are engaged in the Sale of Liquor should not clearly understand the Law. After a careful examination of all the Laws " Kegulating the Sale of Liquors," as also the acts " To Suppress Intemperance, Pauperism and crime," and the several acts amending the same, 1 respectfully submit the following as the Excise Law of the State of New York. W. W. S. East Chatham, N. Y., Sept. 11, 1873. Contents. SECTION I. CommissioneBPbf Excise : In cities : In incorporated villages : In towns : Town Commissioners not to grant license to incorporated -villageB. SECTION n. Commissioners of Excise to be elected : Their duties : Compensation To be classified: One Commissioner to be elected annually : Vacancies. SECTION in. To be voted for on separate ballots: Oath of ofiSce and bond : Excise moneys how disposed of. SECTION IV. Appointment of Commissioners in Cities : Present Commissioners to hold until others are appointed : Term of office: Salary: Triennial appoint- ments: Vacancies: Bemoval. SECTION V. Declaratory of chapter 145, Laws of 1879. SECTION VI, Meeting of Excise Boards : Term of License. SECTION Vn. Persons to •whom licenses may be granted : Amount to be paid therefor: Application for licenses : To be posted in room -where sales are made; Evidence: Becord to be kept: Sales in quantities of five gallons and SECTION vrn. No sales to be made between one and five o'clock a. m. SECTION IX. Bepeal of Metropolitan Excise Board : License Law of 1857 : how applicable. SECTION X. Pay of Commissioners in towns : License fees how disposed of : Minutes of Board, how deposited. SECTION XI. When License to be forfeited : Enter upon premises and cancel License ; May summon witnesses. SECTION xn. Powers of Commissioners to grant License to hotels, to storekeepers. SECTION xin. Commissioners to sign Licenses. SECTION XTV. To make annual Eeports. SECTION XV. Contents of Beport. — 7— SECTION XVI. Eeports to be verified by Oath. SECTION xvn. Granting of License. SECTION xvin. Bond to be taken by Commissioners. SECTION XIX. What to be kept by Innkeepers. SECTION XX. To pnt up sign. SECTION XXI. No recovery for Liquor trusted. SECTION xxn. Clause in Idoense, not to be drank in house, shops, &c. SECTION xxm. To be of good character, and give Innkeeper's bond. SECTION XXIV. Penalties for violation. — 8— SECTION XXV. Penalties for violation. SECTION XXVI. Sales to Indians and minors. .SECTION xxvn. License to keep tavern witliout including a License to sell spirituous or intoxicating Liquors. SECTION xxvin. Arrest of persons violating act : Duty of magistrates before -whom brought : To issue warrants for violation upon cemplaints. SECTION XXIX. Arrests for public intoxication : Duty of magistrate : Punishment by fine and imprisonment : Penalty for neglect of duty by officers and magistrates. SECTION XXX. Metropolitan police districts excepted. SECTION XXXI. Act to apply to sale of ale and beer ; License therefor : Metropolitan police districts excepted. SECTION xxxn. Not to sell to drunken persons. SECTioN xxxm. Duty of magistrates and overseers of the poor. SECTION XXXIV. Not to sell to habitual drunkards and paupers. SECTION XXXV. Days upon which sales of liquor are prohibited. SECTION XXXVI. Penalties, how Eecovered. SECTION XXXVU. Bonds to be filed. SECTION xxxvni. Breach of Bonds, by whom to be sued. SECTION XXXIX. Convictions for violation either in a suit for penalty, or in suit upon bond. SECTION XL. Revoking of License. SECTION XLI. Effect of revocation of License. SECTION XLH. Duty of Courts to instruct grand jurors. —10— SECTION XLin. Who may prosecute for any penalty. SECTION XLIV. Employment of intemperate persons by incorporated companies. SECTION XliV. No jail limits for defendant. SECTION XLVI. Bepeal. SECTION XLVII. Punishment for intoxication of railroad employees. SECTION XLVin. To suppress intemperance in Westchester County. SECTION XLIX- Moneys from Licenses and fines within the village of Monticello to be paid to Treasurer. SECTION L. Providing for the disposition of Excise moneys in Orange County. SECTION LI. To regulate the use of intoxicating liquors in poor houses. —11— SECTION LH. Children not to be admitted to saloons : Penalty. SECTION LHI. Sales of liquors in Court Houses : Penalty. SECTION LIV. Civil Damage Act : Persons injured may maintain action against seller : Jurisdiction of Justice of the Peace. EXCISE LAW. SECTION I. Commissioners of excise. In cities. In incorporated villages. In towns. Town commissioners not to grant licenses in incorporated villages. Section 1. There shall be a board of commissioners of excise ill each of the cities, incorporated villages and towns of this State. Such boards in cities shall be composed of three mem- bers, who shall be appointed as hereinafter provided; in incorporated villages the board shall consist of the presi- dent of the board of trustees and two other trustees, to be designated by said board of trustees, and said presi- dent of the board of trustees shall be president of said commissioners of excise; and in towns they shall consist of the supervisors and justices of the peace therof, for the time being, I'espectively. Any three members shall be competent to execute the powers vested in any town boards ; and in case the office of supervisor be vacant, or there be not two justices in the town, then tlie town clerk shall act in their places respectively. No license for the sale of intoxicating liquors shall be granted with- in the limits of any incorporated village of this State by the commissioners of excise of the town within the limits of which said village is situated, in whole or in part; but in any incor- porated village licenses for the sale of intoxicating liquors sliall be granted by the commissioners of excise of said village only. (Section 1, chap. 175, 1870, as amended by section 1, chap. 249, 1873.) ^ZUl^c..^ /O ^^ S^ j2_ —14— SECTION II. \ CoimniBioners of excise to be elected. Their duties. CompenBation. To be classifled. One commissioner to be elected annually. Vacancies. Section 2. At the annual town naeetings in the several towns in this state, held next after the passage of this act, there shall be elected in t|ie same manner as other town oflScers are elected, three commissioners of excise, who while acting as such com- missioners, shall not_ hold either of the oflQces of supervisor, justice of the peace, or'to-wn clerk, the office of president rip trustee of any incorporated village, and who shall compose the board of excise of their respective towns, and discharge the duties imposed upon the supervisor and justices of the peace of towns, and the president and trustees of incorporated villages thereof, by chapter one hundred and seventy-five of tlie laws of eighteen hundred and seventy, and laws amendatory thereof and supplementary thereto ; and shall be entitled to receive compen- sation at the rate of three dollars per day, while in session, as a board of excise, which shall be a town charge ; except in the counties where the moneys received by said board are paid into, the county treasury as hereinafter provided, when it shall be a county charge. The commissioners first elected under this act shall be classified by lot, under the superintendence of the super- visor, the justice of the peace haviag the shortest time to serve, and the town clerk, or a majority of sucih officers who shall meet at the office of the town clerk of their respective towns, for such purpose, within ten days after such town meeting, and the persons drawing for one, two and three years, shall serve for such terms respectively; and annually thereafter one commis- sioner of excise shall be elected for a term of three years. Vacancies occurring in said boards, from any cause, shall be tilled by appointment by the supervisor and justices of the peace of said town, or a majority of them, until the next annual town meeting, when such vacancy shall be filled by election. Laws 1874, chap. 444, sec. 1. —15— SECTION III. To be voted for on separate ballot. Oath of office and bond. Excise moneys, how disposed of. Sectiok 3. The said commissioners shall be voted for upon a separate ballot, which shall be deposited in a separate box, marked " excise," and before entering upon the duties of their offices, shall take and subscribe the constitutional oath of office and file the sarre vsrith the tov?n clerk, and sliall execute a bond to the supervisor thereof to be approved by him in double the amount of the excise moneys of the preceding year, conditioned for paying over to him or his immediate successor in office, with- in thirty days after' the Receipt thereof, all moneys received by them as such excise commissioners. Said money shall be disposed of as directed by the town board, except in those counties where the support of the poor is a county charge, where such excise money shall be paid into the county treasury, subject to the control of the board of supervisors. 2. Nothing in this act shall affect the provisions of any special act in so far as the same provides for any special dis- position of excise moneys or fines. Law 1874, chap. 444, see. 2 and 3. SECTION IV. Appointment of Commissioners in cities. Present commissioners to hold until others are appoiated. Term of office. Salary. Triennial appointment. Vacancies. Bemoval. Section 4. The mayor of each of the cities, except in the cities of New York, Brooklyn, and Poughkeepsie, shall appoint the commissioners of excise in their respective cities within ten days after the passage of this act; but in the cities of New York, Brooklyn, and Poughkeepsie, the mayor shall nominate three good and responsible citizens to the board of aldermen of such cities respectively, who shall confirm or reject such nominations. In case of the rejection of such nominees, or any of them, the —16— mayor shall nominate other persons as aforesaid, and shall con- tinue so to nominate, until the nominations shall be confirmed. The present commissioners of excise for the metropolitan district and the commissioners for the counties shall continue to exercise the duties of the office until such appointments, or some one of tliem shall be appointed in such cities respectively, as herein pro- vided. Any one or more of the commissioners so appointed shall have the power to act as a board of excise for the city in which he shall be appointed, until the others shall be duly appointed. Commissioners of excise in cities shall hold their offices for three years, and until others shall be appointed in their places, and shall receive a salary not to exceed twenty-five hundred dollars a year each, to be fixed by the mayor and common council of their respective cities, and shall be paid as other city officers are paid. On the first Monday of April in every third year hereafter, the mayor and board of aldermen shall proceed to appoint,, in the manner above described, persons qualified as aforesaid, to be such commissioners of excise in their respective cities for the next three years, commencing on the first day of May in that year and shall, from time to time, as often as vacancies shall occur appoint persons qualified as aforesaid to fill the unexpired term of any commissioners who shall die, resign, remove from the city, or be removed from office. Such commissioners of excise in cities shall be removed for any neglect or malfeasance in office, in the same manner as provided by law for the removal of sheriffs. Sectioit 4. This act shall take effect immediately. Laws 1879, cliap, 145, amending Laws 1870, chap. 175, section 2. Laws 1873, cliap, 549. Laws 1874, chap. 642. Power of appointing commissioners in cities, see People v. Gates, 56 N. T. Rep., 387. A board of commissioners of excise may employ an attorney to prosecute for penalties ; and as they are agents of the county in so doing, the compensation for such services are a coui^ty charge, but can only be collected by audit of the board of super- visors. {People ex rel. Johnson v. Supervisors of Delaware County, 45 N. T., 196,- Buck v The Gityjof Lockport, 6 Lan- sing [Supreme Court Rep.l, 253.) fi-iT^ A ^ ■S The legal fees and the reasonable disbursements for subpoena- ing witnesses by the attorney of a board of excise, if necessary, ill actions brought by him in the course of his official duty, are lawful charges against the county, and the supervisors may be compelled by mandamus to audit them. {People ex rel. Johnson V. Supervisors of Delaware County, 45 N. Y., 196.) —17— The fees of a sheriif for services in actions brought for the commissioners of excise of their county, are county charges. His fees for services in actions brought for the benefit of the metropolitan police fund, or the treasury of the state are not. {People ex rel. Kelly v. Raws, 12 Ahhot Frac. Bep., 192 ; Same Thc'appointment of commissioirerB of excise in the cities cannot be made verbally. Tlie People ex rel. Babcock v. Murray, 70 N. Y. Rep., 521. People ex rel. Kresson v. Fitzsimmons, 68 N. Y. Rep., 515. They cannot by their act or consent transfer the office to others, or relieve themselves from the duties of the office, save in one of the -ways designated by statute. Id. SECTION y. Declaratory of Chapter 145, Laws of 1879. Section 5. Nothing contained in chapter one hundred and forty-five of laws of eighteen hundred and seventy-nine, entitled " An act to further amend chapter one hundred and seventy-five of the laws of eighteen hundred and seventy, entitled ' An act regulating the sale of intoxicating liquors,' " shall be construed to affect the provisions of chapter six hundred and forty-two of the laws of eighteen hundred and seventy-four, entitled " An act declaratory of and to amend chapter five hundred and forty-nine of the laws of eighteen hundred and seventy-three, entitled ' An act to amend an act entitled 'An act regulating the sale of intoxicating liquors,' passed April eleventh, eighteen hundred and seventy, and the act entitled ' An act to suppress intemperance and to regulate the sale of intoxicating liquors,' passed April sixteenth , eighteen hundred and fifty.seven,' " passed June twenty -third, eighteen hundred and seventy-four. Section 2. This act shall take effect immediately. Laws 1879, chap. 472. — IB- SECTION YI. Meetings of excise boards. Term of license. Section 6. The commissioners of excise shall meet in their respective cities, villages and towns, on the first Monday of May in each year, and on such other days as a majority of the com- missioners shall appoint, not exceeding once each month in any year in any town or village, for the purpose of granting licenses, as provided by law. In cities they shall meet on the first Mon- day of each month, and as often as they shall deem necessary. All such licenses shall expire at the end of one year from tlie time they shall be granted. {Sec. 3, chap. 175, 1870.) An agreement, by the lessee of a hotel, to lease to another the hotel bar, and sell him the right to sell liquors under the license of the former, is illegal and void, as providing for a vio- lation of the law. {Sanderson v. Goodrich, 46 Barb. Supreme Gt. Rep., 616.) A license to keep a tavern is a personal trust : defendant can- not justify under a license given to his lessor. {Alger v. Weston, 14 Johns. Rep. \N. Z".], 231.) The term " year" means not the Callender, but the Excise Year. Dis- bro'w V. Saunders, 1 Denio B., 149. SECTION VII. Persons to whomlicenses may be granted. Amount to be paid therefor. Application for licenses to be posted .in room where sales are made. Evidence. Record to be kept. Sales iu quantities of five gallons and over. Section 7. The board of excise in any city, town or village shall have the power to grant license to any person or persons of good moral character, who shall be approved by them, permit- ting him or them to sell anu dispose of, at any one named place within such city, town or village, strong or spirituous liquors, wines, *ale and beer in quantities less then five gallons at, a time upon receiving a license fee, to be fixed in their discretion, and which shall not be less than thirty dollars, nor move than |150' *2 Monthly "^eRtem Journal 328., —lo- in any town or viHage ; and not less than thirty dollars, nor more than $250 in any city. Such licenses shall only be granted on written application to the said board, signed by the applicant or applicants, specifying the place for which license is asked, and the name or names of the applicant or applicants, and of every person interested or to be interested in the business to authorize which the license shall be used; and the license shall be kept posted, by the person or persons licensed, in a conspicuous position in the room or place where his or their sales are made, and shall be exhibited at all times by the person or persons so licensed, and by all persons acting under such license, on demand, to every sheriff, constable or officer, or mem- ber of police. Any omission go to display and exhibit such certificate shall be presumptive evidence that any person or persons so omitted to display and exhibit the same has and have no license. The said board . of excise shall keep a complete record of the names of rll persons licensed, as herein provided, with a statement of the place licensed, and license fee imposed and paid in each case, which record they shall at all times permit to be seen, in a convenient place at their principal office in any city, or at the clerk's office in any town or village. Persons not licensed may keep, and, in quantities not less than five gallons at a time, sell and dispose of strong and spirituous liquors, wines, ale and beer, provided that no part thereof shall be drunk or used in the building, garden or inclosure communicating with, or in any public street or place contiguous to the building in which the same be so kept, disposed of or sold. (Section 4, chap. 175, 1870, as amended by sec. 2, chap. 549, 1873). The commissionsrs are liable, criminally, for an unlawful and corrupt exercise of the powers vested in them. While they are responsible only for good faith and integrity, they cannot from corrupt motives, either grant or withold a license improperly, and shield themselves under the judicial character of their office. {The People v. Jones et al., 54 Barb. [Sup. Court B.'\, 31 1.) Since the statute requires the license to be in writing, defend- ant cannot justify under a parol license. Lawrence v. Gracy, 11 Johns, 179, Not Transferable. Alger v. Weston, 14 Johns, 231. A license illegal from want of authority to grant it, is no de- fence to an action for the penalty. Palmer v. Daney, 2 Johns, Oases 346. —20— If commissioners refuse to license any person within their district, does not justify any person in selling without a license. Mayor &c. of N. Y. v. Mason, 4 E. D. Smitli R., 142 ; Village of Borne V. Knox, 14 Howard Prac. E., 268. In what cases licenses may be granted ; and with what effect. O'Eonrke v. People, 3 Hun. E., 225. The provisions therefore of the act of 1870, (sec. 4,) author- izing the granting of licenses for the sale of intoxicating liquors in quantities less than five gallons, is to be construed in connec- tion with the" former provisions, and a license granted under it gives no authority to one who is not an innkeeper to sell liquors to be drank on the premises. People v. Smith, 69 N. Y. Eep., l75. The provisions of said act, forbidding the granting of licenses to persons not having sufficent ability to keep a tavern, and not having the necessary accommodations to entertain travelers, is still in force. People v. Hartman, 10 Hun., 602. License to the defendant from board of excise of the town giving permission to sell intoxicating liquors, not a bar to plaintiff's action. Quain v. Bussel, et al. 12 Hun. 376. Baker v. Pope, 2 Hun. 550. Excise licenses to persons not keeping inns. People v. Morrison, et al. New York Supreme Court Chambers. Opinion, Westbrook, J. Beported Albany Law Journal. Vol. 22, p. 210. SECTION VIII. No sales to be made between one and five o'clock a.m, Section 8. Licenses granted, as in this act provided, shall not authorize any person or persons to expose for sale, or Sfll, give away, or dispose of, anjf §.trong or spiritaous liquors, wines„ -21- ale or beer, on any day between the hours of one and five o'clock in the morning. And all places, licensed as aforesaid, shall be *closed, and kept closed between the hours aforesaid, and at all other times when such selling is not authorized by law. And it shall be the duty of every sheriff, constable, policeman and officer of police to enforce the observance of the foregoing pro- visions. Nothing herein contained shall be construed to prevent hotels from receiving and entertaining travelers at any time, subject to the restrictions contained in this act, and the act hereby amended. {Section 5, chap. 175, 1870, as amended by section 3, chap. 549, 1873.) ^^ , y * 33 Mich. 279, Post. 39. ^c> fit^-t^T*-^ ^ Selling without a license is a misdemeanor and indictable ; and , this notwithstanding the defendant has been already sued for the ' penalty. {People v. Stevens, 13, Wend. Rep., 341; Peoples. Brown, 16 id., 561; Blatchley v. Moser, 15 id., 215.) 56 N. Y. Kept. 321. SECTION IX. Bepeal of metropolitaii excise board. License law of 1857, how applicable. Section 9. The act entitled " An act to regulate the sale of intoxicating liquors within the metropolitan police district of the State of New York," passed April fourteenth, eighteen hundred and sixty-six, is hereby repealed, and the provisions of the act passed April sixteenth, eighteen hundred and fifty-seven, except where the same are inconsistent or in conflict with the provisions of this act, shall be taken and construed as a part of this act, and be and remain in full force and effect throughout the whole of this State. {Section 6, 'chap. 175, 1870.) 4 Hun. 520. By expressly preserving all the provisions of the act of 1867 {Edmonds' Pev. Stat., vol. 7, p. 668) not inconsistent with itself, the act of 1870 preserves all the penalties of the former act which are in harmony with its provisions. {Commissioners of Excise of Cattaraugus Co. v. Wiley, 2 Zans., 427.) On an indictment against commissioners of excise for granting a license illegally, proof of the mere granting of a license which ought not to have been granted does not establish an offense ; but the jury must be able to say, from the evidence, that it was not a proper case for a license under the statue, and nevertheless granted it, in willful disregard of the statute. {People v. Jones, 54 Bari. Sup. C. P., 311.) —22— SECTION X. I'ay of commissioner in towns. License fee, how disposed of. Minutes of board, how deposited. Section 10. In no town or village shall the commissioners of excise, created by this act, appoint a clerk of the board of excise. The pay of commissioners of excise in towns or villages shall be three dollars per diem. The moneys arising from licenses in any town or village shall be deposited with the county treasurer, within thirty days after receiving the same, to be expended, under the direction of the board of supervisors at their next annual meeting, for the support of the poor of such town. Moneys arising from licenses in cities shall be paid into the treasuries of such cities respectively. The book of minutes kept by the commissioners of excise in any town or village, except when in use by such commissioners, sliall be deposited in the clerk's office of such town or village. Tlie expenses of procuring necessary books for minutes, and necessary blanks, in any town or village, when actually incurred, shall be audited and paid in like manner as other town or village charges. (Section 7, chap, 175, 1870; Edmonds^ ed. Rev. Stat., vol. 1,p. 668.) 32 Wise. 357. Surplus of excise moneys, after support of poor, mny be ap- plied to ordinary town expenses. {General Statutes of N. Y. for 19:1 , chap. 143, j>. 69.) SECTION XL* When license to be forfeited. Enter upon premises and cancel license. May summon witnesses. Section 11. Any conviction for the violation of any provision of this act or of the acts hereby amended, by any person or per- sons licensed, or at at any place licensed as herein provided, shall forfeit and annul such license. The board of excise of any city, town or village may, at any time, and upon the complaint of any resident of said city, town or village, shall summon before them any person or persons licensed as aforesaid ; and if they shall become satisfied that any such person or persons has or have violated any of the provisions of this act or of the acts hereby —23— amended, they shall revoke, cancel and annid the license of such person or persons, which they are hereby empowered to do, and where necessary to enter upon the premises and take possession of and cancel such license. Upon an inquiry the said board, or the party complained of, may summon, and the said board may compel the attendance of witnesses before them and examine them under oath. {Sec. 8, chap. 175, 1870 ; as amended hy see. 4, chap. 549, 1873.) The board may employ an attorney to conduct any proseen- tion commenced by them, bnt cannot give general authority to commence any such prosecution at his discretion. In the em- ployment of an attorney, etc., the board, or a majority of them, must act, or authorize tlie act. {Board of Excise v. Sackrider, 35 N. Y. Rep., 154.) ^=^^^^-^^ A ^ <^ Metoalf V. Garlingliouse, 40 Howard Pr. R., 50. After an innkeeper's license expires, lie is not liable for selling without license, by reason of the com:nissioners neglect to meet. Mayor &c. of New York, 4 E. D. Smith, 142. Same case, 1 Abbots, Prao. E., 344. Power to administer oaths and revoke licenses . People ex rel. Seller V. Wright, 3 Hun., 306. Power to revoke in Brooklyn, People ex rel. Presmyer v. Commis- sioners of Police and Excise, 59 N.Y. E., 92. Application of act to New York. Schwab v. People, 4 Hun., 520. Oonviotion terminates license. People v. Tighe, 5 Hun., 25. The provisions of the excise law of 1873, sec. 8, chap. 549, providing for a cancellation by boards of excise, of licenses gran ted for the sale of intoxicating liquors, is not in contravention of the constitutional provisions preserving the right of trial by jury. The power to license and to cancel licenses is vested in the legislature, and the mode and manner in which it shall be done rests in the legislative discretion. People ex rel, Pressmyer v. Board of Commissioners of Police and Excise in the City of Brooklyn, et al, 59 N. Y. E., 93. —24— SECTION XII. Powers of commissioners to graxit license to hotels. Powers of commissioners to grant license to storekeepers. Section 12. The commissioners of excise shall have power to grant licenses to keepers of inns, taverns or hotels, being residents of the town or city where such inn, tavern or hotel is proposed to be kept, to sell strong and spirituous liquors and wines to be drank in their houses respectively ; and to storekeepers, being such residents, a license to sell such liquors and wines in quanti- ties less than five gallons, but not to be drank in their shops, houses, outhouses, yards or gardens. {Part of sec. 2, chap. 628, 1857.) 90 HI. 218. The duties devolved upon the commissioners of excise by chap 628, Laws of 1857 (4 Edmonds' Stat., p. 46) are, to some extent, discretionery and judicial. They cannot be coerced in the exercise of their discretion, by mandamus or otherwise, and for a mere mistake they are not liable, either civilly or criminally. {The People v. Jones et al., 54 Barh. [Sup. Court P.^,p. 311.) People v. Norton, 7 Barbour, 477. SECTION XIII. Commissioners to sign licenses. Section 13. All licenses shall be signed by the commissionoi-s granting the same. They shall not be issued until the require- ments fixed by the board shall have been complied with. {Part of section 4, chap. 628, 1857.) Since the statue requires the license to be in writing, tlie defendant cannot justify under a parol license from the super- visor to whom he had jiaid the fee. {Lawrence v. Gracy, 11, Johns. E., 179.) SECTION XIV. To make annual reports. Section 14. The commissioners of excise in the several counties in this State are hereby required to make an annual —25— report to the boards of supervisors of said counties at each annual meeting of said boards and within the first five days from the first day of such annual meeting in each and every year after the passage of this act. {Section 1, chap. 274, L. 1860 ; 4 Edmonds' Rev. Stat, p. 55.) SECTION" xy. Contents of report. Section 15. Such report shall be in writing, and shall be sign- ed by the said commissioners, or a majority of them, and shall contain a true statement of all moneys received by them as such commissioners in their otiicial capacity during the year preced- ing the date of said report, and also the name of every person in said county to whom the said commissioners have granted a license to sell strong and spiritous liquors under any section of the excise law passed April 16, 1857. (Section 2, chapter 274, 1860.) SECTION XVI. Beports to be verified by oath. Section 16. Such report, when so made as aforesaid, shall be verified by oath or afiirmation of the said commissioners, or a majority of them, and shall contain a written statement indorsed tliereon, signed by the county treasurer of the county, setting forth the whole amount of money paid over to them by said commissioners during the same year in which such report shall be made ; and the said commissioners sliall also report to said boards the whole amount of fines or penalties received by them in their ofticial capacity from any and every person for any violation of the act entitled " An act to suppress intemperance, pauperism and crime," passed April 16tl), 1857; and in case said commissioners or either of them siiall neglect or refuse to report as aforesaid, he or they shall forfeit and pay $100 for every sucli neglect or refusal, to the use of the people of the county in which he or they may reside. {Section 3, chap. 274, 1860.) All acts and parts of acts inconsistent with the provisions of this act are hereby repealed. {Section 4, chap. 274, Laws 1860 ; '^ Ed. Rev. Stat., p. 56.) —SB- SECTION XVII. Granting of licenses. Sbotion 17. License shall not be granted to any person to sell strong and spirituous liquors and wines to be drank on the premises of the person licensed, unless such person proposes to keep an inn, tavern or hotel, nor unless the comtnissioners are satisfied that the applicant is of good moral character, that he has sufficient ability to keep an inn, tavern or hoel, and the necessary accommodations to entertain travelers, and that an inn, tavern or hotel is required for the actual accommodation of travelers at the place where such applicant resides or proposes to Iceep the same, all of which shall be expressly stated in such license ; and no such license shall be granted except on the peti- tion of not less than twenty respectable freeholders of this state, residing in the election district where such inn, tavern or hotel is proposed to be kept, by them duly signed, and verified by the oath of a subscribing witness ; and not then, unless in the opinion of the commissioners such inn, tavern or hotel is necessary or proper ; and not more than one license shall be granted on the memorial of the same petitioners, or any of them. And- in case the commissioners shall grant any license contrary to the pro- visions of this act, they shall be deemed guilty of a misdemeanor. {Section 6, chap. 628 1857 ; see ante, sec. 7.) 59 How. 35, 910 Week. Dig. 409 Id. 413. The excise law of 1857 requires that persons licensed to sell liquors to be drunk on the premises shall propose to keep an inn or tavern, etc., so tliat a license issued under that law is not only to the person to sell, etc., but is also a license at a particular place. Such a license will protect the agent or clerk of the licensee ; but the fact that he acted for another party will not protect one who sells, as the agent or clerk of a person, or at a place not licensed. {Board of Commissioner of Excise of Orange County v. Dougherty, 55 Barh. Sup. C. Rep., p. 332.) Act of 1857, sec. 6, requiring petition of twenty freeholders is repealed by the act of 1870. People V. Smith, 69 N. Y. Rep., 175. People V. Hartman, 10 Hun., 602. —27— SECTION XVIII. Bond to be taken by commissioners. Section 18. Nor shall such license to keep an inn, tavern or hotel be granted until the applicant shall have executed and delivered to the board of commissioners of excise herein pro-' vided a bond to the people of this state, in the penal sum of $250, with sufficient sureties, who shall duly justify in the sum of $500, to be approved by the board of commissioners, with a condition that such applicant, during the time that he shall keep any inn,*tavern or hotel, will not suffer it to be disorderly, or suffer any gambling, or keep a gambling table of any description within the inn, tavern or liotel so kept by him, or in any out- house, yard or garden belonging thereto. {Section 7 chap. 628, 1857.) A sworn complaint in writing charging the plaintiff, " keeper of a saloon," etc., with being a disorderly person, by allowing drunkenness and gambling in his saloon by men and hojs,.-Held, sufficient. {Gardner v. Bain. 5 Lans. Hep., 256.) An inkeeper's bond, under Laws, 1857, that he will not keep a gambling table of any description, is broken by keeping a bil- liard table which his guests and others use under a rule that the losing party of each game should pay him for the use of tlie table. {People v. Harrison, 28 Howard Prac. Sep., 247.) Under sec. 7, any person who shall be guilty of either offense, shall, for each offense, forfeit twenty-five dollars ; several offenses of one class render the offender liable to only one penalty. Tiffany v. Driggs, 13 Johns. E., 253. BlatcMy v. Moser, 15 Wendell E., 215. SECTION XIX. What to be kept by innkeepers. Section 19. Every keeper of an inn, tavern or hotel, in any of the towns or villages of this state, shall keep in his house at least three spare beds for his guests, with good and sufficient bedding, and shall provide and keep good and sufficient stabling, and provender of hay in tlie winter, and hay or pasturage in the summer, and grain for four horses or other cattle, more than his own stock, for the accommodation of travelers; and every keeper —28— of an inn, tavern or liotel in the cities of this state, shall keep at least three spare beds and the necessary bedding for the accom- modation of travelers. For every neglect or default in having either of the articles herein required, such keeper shall forfeit ten dollars, to be recovered by the overseers of the poor, for the use of the poor. {Section 8, chap. 628, 1857.) To constitute an innkeeper, a tavern keeper or a hotel keeper, the party so designated must receive and entertain as guests those wJio choose to visit his house. A restaurant where meals are furnished, is not an inn or tavern. {The People v. Jones et al., 54 Barb. Sup. Court Rep., p. 311.) The mere granting of a license as a tavern keeper, improvi- dently or improperly, to one v^ho has no accommodations for guests, and whose place is unfit for a tavern, does not render the commissioners criminally liable. To constitute an oifense the license must have been granted with full knowledge of the facts, and willfully, with intent to violate the statute. {Id.) SECTIOlSr XX. To put up a sign. Section 20. Every inn, tavern or hotel keeper licensed under the provisions of this act shall, within thirty days after obtain- ing his license, put up a proper sign on or adjacent to the front of liis house, with his name thereon, indicating that he keeps an iiu), tavern or hotel ; and he shall keep up such sign during the time that he keeps an inn, tavern or hotel. For every month's neglect to keep up such sign he shall forfeit ten dollars. {Sec- tion 9, chap. 628, 1857.) Tlie terms " inn, tavern or liotel " are used synonymously by tlie statute of 1857, to designate what is ordinarily and popularly known as an inn or tavern, or place for the entertainment of travelers, and where all their wants can be supplied. {The People V. Jones et «/., 54 Barb. Sup. Court Rep., p. 31 i; Krohn V. Sweeney, 2 Daly, 200.) A mandamus will not be awarded to compel an act by a public officer in respect to which he may exercise judgment or discretion. People exrel., Hammond v. Leonard, Overseer, 74 N. Y. Rep., 443. —29— SECTION XXI. No recovery for liquor trusted. Section 21. No inn, tavern or hotel keeper wlio sliall tnist any person, other than those who may beL:)(igersin his liouse, for any sort of strong or spirituous liquors or wine i, shall be capable of recovering the same by any suit. All securities given for such debts shall be void ; and the inn, tavern or hotel keeper taking such securities with intent to evade this provision, shall forfeit double the sum intended to be secured thereby. {Sac. 10, ''hap. 628, 1857.) SECTION XXII. Clause iu license, not to be drank in house, shop, etc. Section 22. In all licenses that may be granted (excepting to ' inn, tavern or hotel keepers), to sell strong or spirituous liquors J or wines, in quantities less than five gallons, tliere shall lie inserted an express declaration that such license shall not be deemed to authorize the sale of any strong or spirituous liquor or wine to be drank in the house or shop of the person receiving such license, or in any out house, yard or garden appertaining thereto or connected therewith. (Sec 11, chap. 628, 1857.) .One licensed as an innkeeper has no right to sell liquor by the gallon to be carried away. {Benson v. Moore, 15 Wend. R., 260.) SECTION XXIII. To be of good character, and give innieeper's bond. Section 23. Such licenses shall not be granted, unless the commissioners are satisfied that the applicant is of {rood luoral character, nor until such applicant shall have executed a bond to the people of this state in the penal sum of $500, with sufficient sureties, who shall duly justify in the sum of $1,000, to be approved by the commissioners, and to be delivered to Ihe com- missioners, conditioned that, during the term for whirli his license shall be granted, he will not suffer his place of business to become disorderly; that he will not sell, or suffer to be sold, any strong or spirituous liquors or wines to be drank in —30— his shop or house, or in any out-house, yard or garden appertain- ing thereto, and that he will not suffer any such liquor sold by virtue of such license to be drank in his shop or house, or in any out-house, yard or garden belonging thereto ; and whenever any person is seen to drink in such shop or house, out-house, yard or garden belonging thereto, any spirituous liquors or wine forbid- Lden to be drank therein, it shall be prima facie evidence that 'such spirituous liquor or wines were sold by the occupant of "such premises, or his agent, with the intent that the same should be drank therein. On any trial for the offense last aforesaid, such occupant or agent may be allowed to testify respecting such sale. {Sec. 12, chap. 628, 1857.) Justices, in granting or refusing licenses under the excise law, do not act solely as judicial oflScers. They have, indeed, a dis- cretion, but their duties ar6 so plainly defined that if they disregard them they are liable to an indictment. {People v. Norton, 7 Barh., 477.) SECTioisr xxiy. Penalties for violation. Section 24. Whoever shall sell any strong or spirituous liquors or wines in less quantities than five gallons at a time, without having a license therefor, granted as herein provided, sliall forfeit fifty dollars for each offense. {Sec. 13, chap. 628, 1857.) Licenses to sell liquors are not contracts between the state and the licensee, giving the latter vested rights, protected on general principles, or by the Constitutien of the United States. {Metro- politan Board of Excise v. Barrie, 34 W. T. Rep., 657.) A husband is liable for a statute penalty iiicurred by his wife, .as, for example, the penalty for a sale of liquors without license, made by the wife in her husband's house during his absence. Hashrouck v Weaver, 10 John Rep., 256.) Strong and spirituous liquors, as employed in law of 1857, chap. 628 (4 Ed. Rev. Stat., p. 46), embraces strong beer. {Commissioners of Excise of Tompkins County v. Tat/lor, 21 iV". Y. Rep., 173; Board of Excise of Cayuga Co. v. 'Frecoff', 17 How. Pr. It.. 442; Nevin v. Ladue, 3 Denvis R., 437. Intoxicating liquors are those the use of which is ordinarily or commonly attended with entire or partial intoxication, {People V. Zeiger, 6 Parker Grim. Rep., 355.) —SI- SECTION XXV. Penalties for violation. Section 25. Whoever shall sell any strong or spirituous liquors or wines, to be drank in his house or sliop, or any out- liouse, yard or garden appertaining thereto, or shall suffer or permit any such liquors or wines sold hy liini, or under his direction or authority, to be drank in Ids house or shop, or in any out-iiouse, yard or garden thereto belonging, without having obtained a license therefor as an inn, tavern or hotel-keeper, shall forfeit fifty dollars for each offense. {Sec 14, chap. 628, 1857.) In an action for a penalty for selling liquor without a license,^ the burden of proof is upon defendant to show that he had a license; that being a matter peculiarly within his own knowledge. {Potter y. Deyo,lQ Wend. R., 361; Mayor, etc. of N. Y. v. Mason, 4 E. D. Smith Rep., 142. The act of April 11, 1870, chap. 175 {Ed Rev. Stat. vol. 1,p. 666), " regulating the sale of intoxicating liquors," does not tlcprive a board of commissioners of excise of the right to issue an execution against the person of the defendant after the return of an execution against his property unsatisfied, on a judgment recovered prior to that act. {Board of Commissioners of Excise of Chemung County v. Harvey, 39 How. Prac. R., 191.) Provisions of Excise Law 1857, sec. 14, chap. 628 (above) imposing a penalty for the sale by any person except an inn- keeper who has obtained a license therefor, of " strong or spirituous liquors or wines " to be drank on tlie premises, was not repealed by the Act of 1870 {Laws o/1870, chap. 175) but by virtue of the provisions of the latter act {Ante. sec. 8,) declar- ing that the provisions of the Act of 1857, " except where the same are inconsistent," shall be taken as ii part of the Act of 1870, and shall "remain in full force and effect," the said pro- visions of the Act of 1870 remain in full force, and is a part of the excise law of the state. People v. Smith, 69 N. Y. R., 175. Where a statute creates a new offense, making tliat uulawful which was lawful before, and prescribes a particular penalty therefor, that penalty alone can be enforced ; the offence is not indictable. People V. Hislop, 77 N. Y., 331. —32— SECTION XXYI. Sales to Indians and minors. Section 26. Seotion fifteen of chapter six hundred and twenty- eight of the laws of eighteen hundred and fifty-Beven, entitled "An act to suppress intemperance and to regulate the sale of in- toxicating liquors," is liereby amended so as to read as follows : Section 15. No inn, tavern or hotel keeper, or any other person licensed to sell any strong or spirituous liquors or wines, shall either personally or by his wife, servant, employe or other agent, sell or give any such liquors or wines to any Indian or ap- prentice, knowing or having reason to believe him to be such, or within the knowledge of such agent, without the consent of his master or mistress, nor to any minor under the age of eighteen years, without the consent of his father or mother, or guardian. Who- ever shall either personally or by his wife, servant, employe or other agent, offend against either of these provisions, shall forfeit ten dollars for each and every offence to be recovered by the master of such appretice or servant, or by the parent or guardian of such minor; and any person who shall, either personally or by his wife, servant, employe or other agent, sell or give away any strong or spirituous liquors, ale, beer or wine to any Indian in this state, or shall sell any beer, ale, wine or any strong or spiritu- ous liquor to any minor under the age of fourteen years, knowing or having reason to believe such minor to be under such age, shall be deemed guilty of a misdemeanor, and on conviction shall shall be liable to a fine of twenty-five dollars for each and every offence. 77 ni. 322. Id. 464. Laws 1869, 1870, 1873. Laws 1877, chap. 420. In an action to recover the penalty provided by section 15 of the excise law of 1857 chap. 628, for the sale of spiritu- ous liquors to a minor under the age of eighteen years, the plaintiff has the burden of showing that tlie defendant knew or had reason to believe that the person to whom sale was made was under the age of eighteen years. The words of the statute, " knowing or having reason to believe him to be such," apply to minors as well as to Indians and apprentices. {Perry y. Edwards, 44 N. Y. Rep., 223.) Plaintiff in error was convicted of selling liquor to a minor in violation of sec. 15, chap. 628, Laws of 1857, as amended by Laws of 1877, chap. 420. The minor, a boy of ten years old, testified that he was sent to purchase the liquor by an adult, one Martin, who lived in the house with him, and who furnished the 35 Ohio St. E. 548. 53 Geo. 229. 1 Mich. Lawyer Oir. Ct. E. 30, 160 Ind. 18. Id. 594, 69 HI. 612, 52 Ind. 486. —33— money to buy it ; that he brought the liquor to Martin without tasting it; that subsequently, Martin gave him a drink, by reason of which he became intoxicated. Held, That the conviction was proper, and that the fact that the boy was acting as agent for an undisclosed principal, did not relieve the accused from the penalties imposed. Eoss V. People, 17 Hun., 591. SECTION XXVII. Licenses to keep taverns without including a license to sell spirituous or intoxicating liquors. Section 27. Licenses to keep taverns, pursuant to the laws of this state may be granted by the commissioners of excise, in the several cities and towns of this state, or by any board or officers exercising the power of such commissioners, without including a license to sell strong or spirituous liquors, ale, wines, beer or alcoholic drink, and in all such cases the license shall express such restrictions on its face, and a fee of five dollars may be charged for granting such license and no more; but no such license shall be given until the bond required to be given by tavern-keepers is executed and delivered to said commissioners. Laws 1877, chap. 419. SECTION XXYIII. Arrest of persons violating act. Duty of magistrate before whom brought. To issue warrants for violations upon complaints. Section 28. It shall be the duty of every sheriff, under sheriff, deputy sheriff, constable, marshal, policeman or officer of police to arrest all persons actually engaged in the commission of any offense in violation of this act, and forthwith to carry such person before any magistrate of the same city or town, to be dealt with according to the provisions of this act; and it shall be the duty of such magistrate, on sufficient proof that such offense has been committed, unless such person shall elect to be tried before such magistrate, and unless the offense charged be intoxication in any public place, to require a bond to be executed by such offender -34- iu the penal sum of one hundred dollars, with sufficient sureties, conditioned that such offender will appear and answer the charge at the next Court of Oyer and Terminer, or Sessions, to be held in said county, and abide the order and judgment of the court therein, or to committ such offender to the county jail until such judg- ment of said court, or until he be discharged according to law. And it shall be the duty of the magistrate to entertain any com- plaint of a violation of this act, made by any person under oath, and forthwith to issue a warrant and cause such offender to be brought before him to comply with the provisions of this section ; and such magistrate shall, within ten days, cause such bond, together with all papers and affidavits, with a list of the persons and residences of the complainants and witnesses examined before him, to be delivered to the district attorney of the county, whose duty it shall be forthwith to prosecute the same. (Sec. 16, chap. 628, 1857, as amended by sec. 1. chap. 856, 1869 ; 7 Edvmonds'' Rev. Stat, p. 489.) I'^70, /?yb One arrested under section 16 of the act to suppress intem- perance. (7 Edmondi Revised Statutes, chap. 856, jp. 489) may give bail ; and if he do so, cannot be coerced into a summary trial before the magistrate. {Hill v. People, 20 N. Y. Rep., 363 ; Same case, 18 How. Prac. Rep., 289.) Under section 16, of the act of 1857, fixing the penalty of the bond to be taken where a person is arrested being found actually engaged in violating that act, — at $100, — is not applicable to the case of one indicted under section 21 for sales, etc., on Sunday or election day, and afterwards arrested under the indictment. In the latter case the amount of bail is left to the discretion of the magistrate. {People v. Page, 3 Parker Orim. Rep., 600.) Violations of this section are not punished summarily before a magistrate, unless the accused elects to be thus tried. The act gives the right, under section 16, 1857, to give bail, and to be tried only on indictment. People v. Putnam 3 Parker'' s Grim. Rep., 386.) SECTION XXIX. Arrests for public intoxication. Duty of magistrate. Punishment by fine and imprisonment. Penalty for neglect of duty, by officers and magistrates. Section 29. It shall be duty of every such officer, whenever he shall find any person intoxicated in any public place, to appre- hend such person and take him before some magistrate of the —35— same city or town, and if such magistrate shall, after due examin- ation, deem him too much intoxicated to be examined, or to answer on oath correctly, he shall direct said oificer to keep him in some jail, lock-up or other safe and convenient place until he shall become sober, and thereupon forthwith to bring him before said magistrate, whose duty it shall then be forthwith to try him for such offense ; and such person, when thus charged with intoxication in any public place, shall not be allowed his election to give a bond, as provided for in section 16 (see ante, sec. 28), of this act, for his appearance before the next court of Oyer and Terminer or Sessions, and, upon his conviction by the magistrate of such offense, such person shall be fined not less than three nor more than ten dollars, in the discretion of the magistrate trying him, and costs at the same rate as in courts of special sessions, and imprisonment in the county jail, work-house or penitentiary, until paid, not however, less than ten days nor to exceed six months. The offense of intoxication in any public place being hereby de- clared an offense against the provisions of this act, and punish- able as above provided, it shall be the duties of such officers to arrest or cause to be ai-rested, all such persons when so intoxicated, and of the magistrate to entertain such complaints and make such examination under the penalty of fifty dollars, with full costs of suit, for any neglect to comply with the provisions of this section. {Sec. 17, chap. 628, 1857, as amended ly sec. 2, chap. 853, 1869.) 46 Vt. ,374. Z/ iTzcJ-'-^^f^^^'^^^ It is no defense to one of two persons, indicted for selKng liquor in violation of laws, that he did the acts complained of as a clerk of the other defendant, and by his direction, there being no allegatio;i that the illegal acts were done by compulsion. {French v. People, 3 Parker's Criminal Reports, 114.) A person accused of selling intoxicating liquors, in violation of law, is entitled to a trial by jury. People ex rel. Killeen v. Baird, City Judge of Yonkers, 11 Hun., 289. A statute making intoxication in a public place a criminal offence, the accused cannot be deprived of the right of trial by Hill V. People, 29 N. Y., 263. SECTION XXX. Metropolitan police district excepted. i Section 30. Nothing in this act contained shall apply to the metropolitan police district. {Sec. 3, chap. 856, 1869. —36— SECTION XXXI. Act to apply to sale of ale and beer. Ijicense therefor. Metropolitan police district excepted. /Section 31. All the provisions of this act, as amended, shall be held to apply to the sale of ale or beer, except so much there- of as forbid the granting of license to any person, except to such persons ws propose to keep an inn, tavern or hotel ; and the commissioners of excise may, in their discretion, grant license for the sale of ale or beer for a sum not less than ten dollars to other than those who propose to keep an inn, tavern or hotel; and the provisions of this act shall extend to all portions of the state, except the Metropolitan police district. {Sec. 4, chap. 856, 1869; 7 Edmonds' Rev. Stat., p. 490.) Lager beer fails within the term " intoxicating liquors," if the use of it is ordinarily or commonly attended with entire or partial intoxication, which is a question of fact for the jury {People V Zeiger, 6 Parker's Crim. Pep., 355.) Eauv. People, 63 N. Y. B., 277. SECTION XXXII. Not to sell to drurukeB persons. Section 32. Whoever shall sell or give away any strong or spirituous liquors or wines, or shall suffer any such liquors or wines to be sold or given away under his direction or authority, to any intoxicated person, shall forfeit not less than ten or more than twenty-five dollars for each offense. (Sec. 18, cJiap. 628, 1857.) 50 Ind. 22; 90 Ills. 59. The offense of selling liquor to an intoxicated person created by the excise Liw of 1857 {sec. 18, chap. 628), was not indictable and punishable as a misd(jmeanor. People V. Hislop, 77 N. Y., 331. Foote V. People, 56 N. Y., 322. People V. Stevens, 13 Wend., 341. Lane v. Brown, 16 Wend., 561. People ex re/., Hislop v. Oowles, County Judge, etc., 16 Hun., 577. He is subject only to a fine of not less than ten nor more than twenty-five dollars. Id. —37— SECTION XXXIII. Duty of magistrates and overseers of the poor. Section 33. It shall be the duty of the magistrates and over- seers of the poor, in any town or city, on complaint and satisfac- tory proof by a wife, that her husband is an habitual drinker of intoxicating liquors, to issue written notices to all dealers in intoxicating liquors against whom such complaint is made, for- bidding the sale or giving of such liquor to snch husband for the term of six months from the date of the notice, under a penalty of fifty dollars, with costs, for each and every sale or giving of sucli liquor, after such notice shall have been given, to be sued for in her own name, and for her own use. It shall be the dutj of such magistrates and overseers of the pooj' to forbid the sale in like manner in all cases, when a husband sliall make like satis- factory proof concerning the wife, and all tlic provisions of this section shall apply the same in either case. It shall be the duty of the magistrates and overseers of the poor, when like proof is made by a parent concerning a child, who is a minor, under the age of twenty-one years; or, by a child concerning a parent, to for- bid the sale in like manner ; and all the provisions of this act shall apply as in other cases named above. (Sec. 19, chap. 628, 1857.) It is no defense to an action against a husbandfor selling liquor in violation of the statute, that his wife owns the tavern where it was sold, and that he sold as her agent, unless there is proof that she had a license. (Board of C'ommtssioneis of Excise of Orange County v. Dougherty, 55 Barb., 2^- 332.) SECTION XXXIV. Not to sell to habitual drunkards and paupers. Section 34. It shall not be hiwful, under the provisions of this act, to sell intoxicating liquors to any person guilty of habitual drunkenness, nor to any person against whom the sellermay have been notified by parent, guardian, husband or wife from selling intoxicating liquors; and every party so selling or retailing intoxicating li(juors shall, on proof thereof, before any court of competent "jurisdiction, be deprived of liis license to sell, and —38— shall Dot be allowed a renewal of said license, and, in addition, on conviction, shall be punished by a fine of not less than twenty dollars, nor more than fifty dollars for each and every violation of the provisions herein set forth. If any inn, tavern or hotel- keeper, or any other person or persons whatsoever, knowingly (outside of any poor house), shall sell or give to any pauper or inmate of any poor house or alms house strong or spirituous liquors or wines, such person or persons so offending shall be fined twenty-five dollars and be guity of a misdemeanor, and on conviction shall be imprisoned not more than sixty days. {Sec. 20, chap. 628, ]857.) 25 Ohio St. E. 584; 50 lud. 22. On an indictment for selling liquor, if defendant puts in evi- dence a license granted in a specified town, it may be shown in answer that he was not a resident of the town in which he obtained the license. The commissioners do not acquire a juris- diction over non-residents by their own act in asserting it. {People V, Davis, 36 N. Y. Rep., 77 ; Same Case, 32 Hoiv. Prac. Rep., 442.) 25 Ohio St. E. 381. SECTION XXXV. Days upon which sales of liquors prohibited'. '^ Section 35. ISTo inn, tavern or hotel-keeper, or other person, shall sell or give away intoxicating liquors or wines on Sunday* or upon any day on which a general or special election or town meeting shall be held, and within one-quarter of a mile from the place where such general or special election or town meeting shall be held, in any of the villages, cities or towns of this state, to any person whatever as a beverage. In case the election or town meetings shall not be general throughout the state, the provisions of this section in such case shall only apply to the city, county, village, or town in which such election or town meeting shall be held. Whoever shall offend against the provis- ions of this section shall be guilty of a misdemeanor, and shall be punished for each offense by a fine of not less than thirty dollars, nor more than two hundred dollars, or by imprisonment not less than five days, nor more than fifty days, or both such —39— fine and imprisonment at the discretion of the court. {Sec 21, chap 638, 1857, as amended by sec. 5, chap. 549, 1873.) Anti. 21. In order to warrant a conviction of a licensed tavern keeper under L. 1857, chap. 628, for selling liquor at his bar on Sunday, proof must be made of an intent, on defendant's part to violate the statute. (People v. Utter, 44 Barb., 170.) 33 Mich. 279. Where sale is not made by defendant personally, or in his presence, the presumption of his innocence is not overcome by merely showing that the sale was made on his premises, by the bartender, unless evidence also shows that defendant in some manner participated in it, connived at it, or assented to it. (Id.) The question whether he assented, is one of fact, and not of legal presumption, and belongs to the jury. (Id.) A local municipal ordinance, that "no person shall sell or give any spirituous or intoxicating liquors within the bounds of the village upon the Sabbath day under penalty of a fine of twenty- five dollars," is not inconsistent with the act of 1857, which imposes, by section 13, chap. 628, 1857, a penalty of fifty dollars for selling less than five gallons without license, and, by section 14, a similar penalty for selling any quantity to be drank on the seller's premises, and, by section 21, makes it a misdemeanor to sell or give away any intoxicating liquors on Sunday. All these laws may well stand stand together; and if an offense is covered by both, the penalties are cumulative. ( Village of Cokoes v. Moran, 25 Eow. Prac. R., 385. SECTION XXX \ri. Penalties how recovered. Section 36. Section twenty-two of chapter six hundred and twenty-eight of the laws of eighteen hundred and fifty-seven, entitled "An act to suppress imtemperance, and to regulate the sale of intoxicating liquors" is hereby amended so as to read as . follows: § 22. The penalties imposed by this act, except the penalties '.. provided for by section fifteen and nineteen, shall be sued for, , and recovered by and in the name of the overseers of the poor/ of the tovpn or city in which the alleged penalty is incurred, except-; in such towns or cities as have no overseers of the poor, in which ^ case said penalties shall be sued for, and recovered by and in the. —40— name of the board of commissioners of excise of the town or city aforesaid and paid over to the treasury of the county for the support of the poor of the town or city in which such penalty was incurred, except that in counties where there is no distinction between town and county poor, then for the poor of such county, within thirty days after receipt of the same by such commissioners, overseers or their attorneys. Laws 1878, chap. 109, amending Laws, 1857, chap. 628, section 22. 3 N. Y. Supreme Ot. E., 782. The county commissioners of excise, under the excise act of 1857, are superseded by the town commissioners authorized by the excise act of 1870, and are by that act removed from oflBce and deprived not only of the power to grant licenses, but to pros- ecute for penalties or perform any other duty as commissioners. {Board of Excise v, Garlinghouse, 45 iV. Y. Rep., 249.) Actions for penalties commenced by the county commissioners before the passage of the act of 1870 are not thereby abated, but may be continued by the town commissioners, who may be sub- stituted as their successors in office, within their respective local- ities ; and until such substitution the action will proceed in the name of the original parties. (/<:?•) Effect of penal clanseg, Foote v. People, 56 N. Y., 321. SECTION XXXYII. Bonds to be filed. Section 37. Every bond taken pursuant to the provisions of this act, shall, within ten days after the execution of the same, be filed in the office of the clerk of the town or village in which the license shall be granted, and in cities, in the city clerk's office. {Sec. 23, chap. 638, 1857.) SECTION XXXYIII. Breach of bonds, by whom to be sued. Section 38. "Whenever a breach of the condition of such bond given upon the granting of any license, shall happen, it shall be the duty of the commissouers of excise, the supervisor of the town, mayor of the city or trustees of the village, in which the person who shall ir.cur the penalty, shall reside, to proscute the same and recover the penalty therefor. (Sec. chap. 628, 1857.) —41— It is not necessary, in an indictment for the unlawful sale of spirituous liquors, to name the particular person to whom the sale was made. {Osgood v. The People, 39 N. T., [12 Ti^any], A count, in an indictment for unlawfully selling strong and spirituous liquors without license, which charges that the defend- ant on a specified day, and on divers other days between that day and the day of finding the indictment, sold by retail to divers citizens of this state and to divers persons, to the jurors unknown, strong and spirituous liquors, does not charge several distinct offenses, nor is it bad for uncertainty or duplicity. {Id.) SECTION XXXIX. Conviction for violation either in a suit for penalty, or iii suit upon bond. Section 39. Whenever any conviction or judgment shall be obtained against any person licensed to sell strong or spirit- ous liquors or wines, for any violation of the provisions of this act, either in a suit for a penalty, or in a suit upon a bond given by such person, it shall be the duty of the justice or court before whom the same shall be had, to transmit to the next court of sessions of the county, a statement of such conviction or judg- ment, and the offence for which it was obtained. {Sec. 25, chap. 628, 18570 Service of notice of appeal, on one member of the board of commissioners of excise of a county, is not service on the board. Any number of the members less than the whole do not con- stitute the board of excise; and a service of papers on a board of excise must be on every member thereof, to confer jurisdic- tion upon the appellate court to hear the appeal. A board of excise, like overseers of the poor, commissioners of highways, etc., is not an artificial body, like a corporation, but a quasi cor- poration only. {Metcalf v. Qarlinghouse, 40 How. Prac. H., 50.) SECTION XL. Bevoking of license. Section 40. The said court shall cause the person or persons against whom such conviction or judgment was obtained to be —42— notified to appear on such day as the court may appoint, to show cause why any such license that may have been granted to him or them should not be revoked. At the day appointed, and on such other days as the court shall appoint, it shall proceed to inquire into the circumstances, and shall revoke the license granted to the person or persons violating the provisions of this act. (Sec. 26, chap, 628, 1857.) 59 N. Y. 92 ; 5 Hun. 25 ; 30 Mich. 492. SECTION XLI. Effect of revocation of license. Section 41. The persons whose license shall be revoked shall be incapable of receiving any such license to sell strong or spirituous liquors or wines for the space of three years from the time of such revocation. (Sec. 27, chap. 628, 1867.) Section 28, chap. 628, 1857, is omitted. {See sec. 54, Civil Damage Bill; Laws of Jf. Y., chap. 646 ; Laws of 1873.) 59 N. Y. 92. SECTION XLII. Duty of courts to instruct grand jurors. Sectioit 42. It shall be the duty of courts to instruct grand jurors, to inquire into all offenses against the provisions of this act, and present all offenders under this act, and also all persons •who may be charged with adulterating imported or other intoxi- cating liquors with poisonous or deleterious drugs or mixtures, or selling the same, or with knowingly importing or selling intoxicating liquors or wines adulterated with poisonous or dele- terious drugs or mixtures; which offences are hereby declared to be misdemeanors, to be punished by imprisonment in the penitentiary, work-house or jail for a period of three months, and by a fine of one hundred dollars. [Sec 29, chap. 628, 1857. 56 N. Y. 321. —43— SECTION XLIII. Who may prosecute for any penalty. Section 43. In case the parties or persons whose duty it is to prosecute for any penalty imposed for any violation of the pro- ' visions of this act shall, for the period of ten days after complaint^ to^ them that any person has incurred snch penalty, accompanied with reasonable proof of the same, neglect or refuse to prosecnie for such penalty, any other person may prosecute therefor, iny the name of the overseers of the poor of the town in which said^ alleged penalty was incurred, and in the manner provided by section^ 22 of this act as the same is amended by section 1 of this chapter, i {Sec. 30, chap. 628, 1857, as avtewled hy sec. 2, chap. 820, 1878.) Although it may be necessary that all the commissioners, or at least that a majority, after all are nctified, sliould meet to decide to sue for a penalty ; yet it is not necessary that this be shown affirmatively. It will be presumed, unless defendant clearly shows the contrary. {Board of Excise of Saratoga Cojinly v. Duheriy, 16 Hoir. Prac. Rep.,^Q;Kee2l Wend., 11?,.) ., ,. , l^^y^lu^irvU^^c^f^^ Hun. 283; 13 Barb. 414. ^y=^^'^^V';llli^ J~^ Where one of the board has instituted proceedings, and the consent of the other members can be presumed, the proceedings will be sustained. (Board of Excise v. Sackriaer, 35 Hew York Rep., 154.) SECTION XLIY. Employment of intemperate persons by incorporatsd companies. Section 44. All incorporated companies and persons in this state engaged in conveying passengers, including especially all railroad, steamboat and ferry companies, and all kinds of corpo- rations conveying, for hire, persons or property, shall be and hereby are required to refuse employment to all persons who, on good and sufficient proof, shall be shown to indulge in the intemperate use of intoxicating drinks ; and any such com- pany which shall retain in its employ any person or persons who shall, OD competent proof, be shown to be intoxicated at any period while in the active service of said company or person, eitlier as engineer, conductor, fireman, switch-tender, commander, pilot, mate or foreman, or be in any way connected with the moving power or management, or whose duty, if neglected, would dimin- ish the safety and security of life, limb or property intrusted -44- hereto, said company or corporation shall be liable to pay a sum f not , less than fifty dollars, nor no more than one hundred oUars, to the county treasurer in the county where the offense aay be committed and proved, before any court of competent arisdiction. (Sec. 31, chap 628, 1857.) SECTION XLV. No jail limits for defendants. Section 45. In any judgment rendered or recovered on any )ond to be given under this act, or for any penalty incurred mder this act, the person or persons against whom such judg- nent shall be rendered shall not be entitled, under any execu- ion issued on such judgment, to the liberties of the jail. {Sec. 52, chap. 628, 1857.) SECTION XLVl. Bepeal. Section 46. Title 9 of chap. 20 of the first part of the Re- nsed Statutes, and the act entitled " An act for the prevention of ntemperance, pauperism and crime," passed April 9th, 1855, md all other acts inconsistent with the provisions of this act, are lereby repealed. {Sec. S3, chap. 628, 1857.) SECTION XLYII. Punishment for intoxication of railroad employes. Section 47. If any person employed or who shall be employed upon the railroad of any such corporation as engineer, conductor, baggagemaster, brakeman, switchman, fireman, bridge tender, flagman, signalman, or having charge of the regulating or run- ning of trains upon said railroad in any manner whatsoever, he intoxicated while engaged in the discharge of such duties, he sliall, upon conviction thereof, be deemed guilty of a misde- meanor, and shall be punishable for each offence by a fine not -45- exceeding one hundred dollars, or by imprisonment in a county jail for a term not exceeding six months, in the discretion of the court having cognizance of the offense. And if any person so employed, as aforesaid, by any such corporation shall, by reason of such intoxication, do any act or neglect any duty, which act or neglect shall cause the death or injury to any person or per- sons, he shall, upon conviction thereof, be punishable by imprison- ment in the county jail for a terra of not less than six months, or in the state prison for a term not exceeding five years, in the discretion of the court having cognizance of the offense. {Laws ofV611, chap. 560; sec. 4, amending sec. 41, chap. 140, Laivs 1850; Edmonds' Rev. Stat, vol. %,p. 635.) SECTION XLVIII. To suppress intemperance in Westchester County. Section 48. There shall be appointed on the second Tuesday of May next, by the county judge of Westchester county, three rep- utable freeholders, residents of said county who shall be com- missioners of excise in and for said county, and shall be known as the board of commissioners of excise of the county of West- chester. The said county judge shall divide the said commis- sioners into three classes by lot. The commissioner assigned to the first class shall hold his office until the first day of January, eighteen hundred and seventy-seven, the commissioner in the second class until the first day of January, eighteen hundred and seventy-nine, and the commissioner in the third class until the first day of January, eighteen hundred and eighty-one ; and one commissioner in every two years hereafter as the term of office shall expire, shall be appointed on the second Tuesday of May in each year by said county judge, who shall hold his office for six years from the first day of January following his appoint- ment. In case of vacancy by death or otherwise in the board of commissioners, such vacancy shall be filled by the said judge for the unexpired term of such commissioner. Every commissioner before he shall enter upon his duties shall take and subscribe the ' oath prescribed by section one article twelve of the Constitution, and shall be entitled ti receive the sum of five dollars per day for services actually performed, to be allowed and paid in like manner as other county charges, and no other or greater compen- sation shall be allowed. —46— Sec. 2. The said commissionera of excise shall meet at the place where the county court is required to be held on the third Tuesday in May in each year, and on sucli other days as the majority of the commissioners shall appoint, not exceeding twenty-five days in any one year, for the purpose of granting licenses as hereinafter provided. They shall have power to grant licenses to keepers of inns, taverns, hotels or restaurants being residents of the town or city where such inn, tavern, liotel or restaurant is proposed to be kept to sell strong and spirituous liquors and wines to be drank in their houses respectively ; and to store-keepers or druggists being such residents, a license to sell such liquors and wines in quantities less than five gallons, but not to be drank in their shops, houses, out-houses, yards or gardens ; and they shall have power to determine the sum to be paid for a license by each person applying, which sum shall be not less than thirty dollars nor more than one hundred dollars, except in case of druggists, which shall be not less than ten dol- lars. It shall not be lawful for druggists having such licenses to sell strong and spirituous liquors, excepc upon the prescription of a practicing physician. Sec. 3. AH licenses shall be signed by the commissioners or a majority of them, granting the same. They shall not be issued until the requirements fixed by the board shall have been com- plied with. When issued they shall be in force unless revoked until ten days after the third Tuesday of May next succeeding the granting of such license. Sec. 4. It sliall be the duty of all courts of said county, having criminal jurisdiction, to instruct grand jurors to inquire into all offenses against the provisions of this act, and toprevent all offend- ers under this act, and also all persons who may be charged with adulterating imported or other intoxicating liquors with poi- sonous or deleterious drugs or mixtures, or selling the same, or with knowingly importing or selling intoxicating liquors or wines adulterated with poisonous or deleterious drugs or mixtures, which ofi"ences are hereby declared to be misdemeanors, to be punished by imprisonment in the county jail of said county for a period not exceeding three months, or by a fine not exceeding one hundred dollars, or by both such fine and imprisonment, in the discretion of the court. Sec, 5. The provisions of the act entitled " An act to suppress intemperance and to regulate the sale of intoxicating liquors," passed April sixteenth, eighteen hundred and fifty-seven, except were the same are inconsistent or in conflict with the provisions of this act, shall be taken and construed as a part of this act, and -47- be and remain in full force and effect in the said county of West- chester, and every part thereof. Sec. 6. All acts and parts of acts inconsistent with the pro- visions of this act are hereby repealed. Sec. 7. This act shall take effect immediately. Laws 1874, chap. 327. SECTION XLIX. Moneys from licenses and fines within the village of Monticello to be paid to the treasurer. Section 49. All moneys derived from the granting of licenses for the sale of intoxicating liquors and from the collection of fines for intoxication, within the village of Monticello, shall be paid over to the treasurer of, and for the use of said village ; and the said fines and Jicenses may be sued for and collected in the name of the president and trustees of the village of Monticello. Laws 1874, chap. 38-, SECTION L. An act providing for the disposition of excise moneys in the several towns of Orange county, except the city and town of Newburgh. Passed June 7, 1875 ; three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows: Section 1. The commissioners of excise of the several towns and villages in Orange county (except the city and town of Newburgh), shall pay over to the supervisor of the town, within thirty days after the receipt thereof, all moneys received by them as excise commissioners. Such moneys shall be paid by the supervisor to the overseers of the poor of the town in such sums and at such times as may be needed for the temporary relief of the poor of the town, as may be directed by the town board. Section 2. This act shall take effect immediately. Laws 1875, chap. 533. -48- SECTION LI. Ad act to regulate the use of intoxicating liquors in poor-houses, juvenile reformatories, protectories, houses of refuge, jails, penitentiaries and prisons. Passed May 27, 1880; three-fifths being present. The People of the State of New York, represented in Senate and Assembly do enact as follows: Section 1. It shall be unlawful to introduce into any poor- house, juvenile reformatory, protectory, house of refuge, jail, penitentiary or prison, or to bring upon the premises thereof, any wine, alcoholic, malt or intoxicating liquors, except upon the written requisition of the medical oflScer of such institution, or for any trustee, manager, officer, agent, employee, or other person connected with any such institution, or the inmates thereof, to use, to offer to others, or to allow to be used within any such institution, or upon the premises thereof, any wine, alcoholic, malt or intoxicating liquors, except by the direction and prescription of the medical officer of such institution, who shall, in every case of such prescription, make a record of the name of the person and the cause for which such prescription is given, in a book kept publicly for such purpose, which record shall be verified by the affidavit of such medical officer, at least once in every six months. Section 2. Any person violating this act, upon conviction thereof, shall be deemed guilty of a misdemeanor. Section 3. This act shall take effect immediately. Laws 1880, chap. 429. SECTION LII. Cliildren not to be admitted to saloons, etc. Penalty. Skction 1. No minor under the age of fourteen years shall be admitted at any time to, or permitted to remain in any saloon or place uf entertainment wliere any spirituous liquors or wines or intoxicating or malt liquors are sold, exchanged or given away, or at places of amusement known as dance-houses and concert- saloons, unlets accompanied by parent or guardian. Any pro- prietor, keeper or manager of any such place, who shall admit -49- siich minor to, or permit him or her to remain in any such place, unless accompanied by parent or guardian, shall be guilty of a misdemeanor. Laws 1877, chap. 428, sec. 1. SECTION LIIl. Sales of liquor iii]|coTirt house. Penalty. ^ Section 53. No spirituous liquor shall, on any pretence what- - ever, be sold within any building established as a court house for the holding of courts of record, while any such court or any circuit court shall be sitting therein. 2 Rev. Stat. 291, part 3, chap. 3, title 2, sec. 95; 2 Ed. Eev. Stat., p. 302, sec. 95, as amended by Laws 1877, chap. 416. Any person violating the provisions of the last section, shall be deemed guilty of a misdemeanor. Id., sec. 96. SECTION LIY. Civil damage bill. Persons injured may maintain action against seller, etc. Jurisdiction of justices of the peace. Section' 54. Every husband, wife, child, parent, guardian, em- ployer or other person who shall be injured in person, or in consequence of the intoxication, habitual or otherwise, of any person, shall have a right of action in his or her name against any person or persons who shall, by selling or giving away intoxicating liquors, cause the intoxication, in whole or in part, of such person or persons, and any person or persons owning* or renting or permitting the occupation of any building or premises, and having knowledge that intoxi- cating liquors are to be sold therein, shall be liable, severally or jointly with the person or persons selling or giving intoxicating liquors aforesaid, for all damages sustained and for exemplary damages ; and all damages recovered by a minor under this act * 27 Ohio, 669. —50— shall be paid either to such minor or to his or her parent, guar- dian or next friend, as the court shall direct ; and the unlawful sale or giving away of intoxicating liquors shall work a forfeiture of all rights of the lessee or tenant under any lease or contract of rent upon the premises. y Sec. 2. In any action arising for violations of tha provisions of this act, any justice of the peace in the county where the ^ offense is committed shall have jurisdiction to try and determine the same, providing the amount of damages claimed does not exceed $200, in which case, and where the damages claimed do not exceed $500, the justice of the peace before whom the action is com- menced shall associate with himself any other two justices of the peace in the same county, who shall have jurisdiction to try and determine the same. {Qeneral Statutes of New York, 1873, chap. 656.) The act constitutional, Baker v. Pope, 2 Hiin., 556. Effect of act as to precedent licenses and sales, Dubois v. Miller, 5 Hun., 332. Death caused by intoxication. Hayes v. Phelan, 4 Hun., 733. "Widow's action for death of husband, joinder of defendants under civil damage act. Jackson v. Brookins, 5 Hun., 530. Complaint under civil damage act. Id. Volans V. Owens, 9 Hun., 658. Eight of action under and for damages. Franklin v. Sohermerhom, 8 Hun., 112. For death, Quain v. Bussell, 8 Hun., 319. An action may be brought against the owner of premises jointly with the person selling, or severally. BerthoK v. O'BeUly, 8 Hun., 16. Employers are liable for the act of a barkeeper who sup- plies liquors without their knowledge, and against their instruc- tions. ^mith T. Eeynolds, S Hun., 128. —51— An action is maintainable under the civil damage act by a wife to recover damages for loss of means of support, in conseqiience of the intoxication of her husband. HiU V. Berry, 75 N. Y. Eep., 229. 33 Wise. 570 ; 28 Mich. 496. Civil damage act constitutional and valid. Bertholl v. O'Reilly, 74 N. T. Eep., 500. Baker v. Pope, 2 Hun., 556. In case of a husband having a wife and family dependent on him for support, who by reason of intoxication becomes incapac- itated to labor and neglects to provide for them so dependent, or squanders his substance, reducing them to penury and want, is within this act. i Volans T. Owen, 74 N. Y. Eep., 527. Recovery of damages against owner of building where liquors are sold, the permission or knowledge of the owner must be pre- sumed or inferred. Franklin v. Schermerliom, 8 Hun., 112. Contributory negligence. Bertholf v. O'BeiUy, 8 Hun., 112. Same case, 74 N. Y. E. , 500. Exemplary damages and distribution of damages among par- ties entitled to sue. Id. Joint action against landlord and tenant will lie. Bertholf v. O'Eeilly, 8 Hun. Same case, 74 N. Y. E., 500. A complaint alleging that the defendant sold intoxicating liquors to plaintiff's husband, intoxii;ating him and rendering him incapable of labor and of supporting the plaintiff, and so injur- ing him as to cause death and that by reason of his death plain- tiff had been injured in property and means of support to the amount of $6,000, does not state a cause of action under the civil damage act. Brookmire v. Monaghan, 15 Hun., 16. Hayes v. Phelan, 4 Hun., 733. In an action brought by a married woman to recover damages under civil damage act, the complaint alleged that the defendant, Crawford, resides in one village, and the defendant, Hoag, in —52— 'another; that on May 20, 1875, "the defendants wrongfully, 'Conspiring and intending to injure said plaintiff, at their places of residence aforesaid, gave and sold intoxicating liquors to the plaintiff's husband, * * * which he drank," and that in ^consequence thereof he became intoxicated, and killed a horse oelonging to plaintiff, to which complaint the defendants separ- ately interposed general denials. Meld : That even if the alle- gations as to a conspiracy were rejected as surplusage, the com- plaint charged a joint sale, and that it was not sustained by proof of separate sales by each defendant, at his place of resi- dence. MorenuB v. Crawford et al.j 15 Hun., 45. Defendant sold liquor to the son-in-law of plaintiff, who be- came intoxicated thereby; and in consequence thereof, drove a team, behind which he and plaintiff's wife were riding, so reck- lessly as to upset the wagon, and break the wife's arm. In an action by the husband to recover for the loss of her services, and the expenses of medical attendance, nursing, etc., held, that he was entitled to recover. Aldrich. v. Sager. 9 Hun., 587. In an action under the civil damage act for injury to means of support in consequence of intoxication, which caused the death of the intoxicated person, damages resulting from the death cannot be recovered. Davis V. Justice, 31 Ohio B., 359. Shagart v. Egan, 83 Ulinois Kep., 50. 25 American E., 359. Craig V. Swinerton, 8 Hun.. 145. 3 Weekly Dig. 154; 8 id. 112; 48 Verm. 628; 1 West. Law Month. 391; 42 Iowa, 143 ; 26 Ohio State E. 259; 56 N. H. 74; 53 Ind. 517; 71 Ills. 241; Id. 274; Id. 632; 72 Id. 133; Id. 541 ; 80 Id. 283; 53 Ind. 599; 81 Dls. 213; Id. 435; 49 Ind. 441; Id. 461; 76 His. 222; Id. 331; 25 Ohio State 103; Id. 352; 32 Mich. 89; 50 Ind. 405; 77 Ills. 109; Id. 381, 388, 593; 48 How. 144; 5 N. Y. Supr. Ct. E. 102; 11 Alb. L. J. 95; 53 N. H. 614; 7 Chicago Leg, News, 340' ,; 35 Wise. 80; 39 Iowa, 6^; 36 Wise. 344; 54 N. H. 117: ^ Xerm. 537; 38 Iowa, 398; Id. J:65; Idf 486; 17^ C. C. FC. 126; 27 » e e. v^ B. 438; 27^^. C. PI. 93. A wife has an interest in her husband's capacity to perform labor as a means of support; and she may prosecute an action for damages resulting to her from the deprivation of such means of support, in consequence of the intoxication of her lius- band, against any person who caused such intoxication by selling to him intoxicating liquors in violation of said statute. {Schneid- er V. Hosier, 21 Ohio tSt. Hep., 98 ; 33 Wise, 570 ; 28 Mich., 496.) An action for injuries sustained by a wife, in her person, or property or means of support, may be commenced after the death of the husand. (Id.) • -53- In actions under said section, in -which the plaintiff shows a right to recover damages actually sustained, the jury may also assess exemplary damages without proof of actual malice or other special circumstances of aggravation. {Id.) SECTION LY. No liquors allowed in any room or building used for polling or registry purposes. In cities and incorporated villages, no building or part of a building shall be designated as a registry or polling place iri which, or any part of which, spirituous or intoxicating liquors are sold. Laws 1872, chap. 570, sec. 16. No lager beer, ale, wine or spirituous liquors shall be allowed on election day in any room used for election purposes. Laws 1880, chap. 56, sec. 17. SECTION LYI. AN ACT to Define some of the Bights and Responsibilities of Landlords and Tenants. The People of the State of New York, represented in Senate and Assembly, do enact as follows : Section 1. Whenever the lessee or occupant, other than the owner, of any building or premises shall use or occupy the same, or any part thereof, for any illegal trade, manufacture or other business, the lease or agreement for the letting or occupancy of sach building or premises shall thereupon become void, and the landlord of such lessee or occupant may enter upon the premises so let or occupied, and shall have the same remedies to secure • possession thereof as are given by law in the case of a tenant holding over after the expiration of his lease. Sbo. 2. The owner or owners of any buildings or premises knowingly leasing or giving possession of the same to be used or occupied, in whole or in part for any illegal trade, manufacture or business, or knowingly permitting the same to be used for any illegal trade, manufacture or business, shall be jointly and severally with the tenant or tenants, occupant or occupants, for any damage that may result by reason of such illegal use, occu- pancy, trade, manufacture or business. Sbo. 3. This act shall take effect immediately. Laws 1873, chap, 583, APPENDIX. FORMS No. 1. APPLICATON FOE INNKEEPBK's LIOENSB. TO THE BOAED OF 00MMISSI0NEK8 OF EXCISE in and for the of County The underBigned applicant for License, respectfully represnt that desire to sell and dispose of Strong and Spieitu- OTTS LiQDOBs, WiNES, Alb AND Beeb, in quantities less than five gallons at a time, to be drank on the premises at of County of that propose to kpep an Inn, Tavern or Hotel thereat ; that the only person interested in the business to authorize ■which the license shall be used. Dated 18 (Signed,) County of , ss : being sworn say the foregoing application by h subscribed is true. Subscribed and sworn to before me, ) this day of 18 ) —55— No. 2. APPLICATION POB STOBE-KEEPBB's IiIOBNSil. TO THE BOAED OP COMMISSIONEES OF EXCISE of tte The undersigned resectfully represent that desirous to sell and dispose of strong and spirituous liquors, wines, ale and beer in quantities less than five gallons at a time at in the of but not to be drank on the said premises, nor in the house or shop of the undersigned, or in any out-house or yard or garden appertaining thereto or connected therewith. And therefore who the only person to be interested in said business, pray that a license may be granted to the undersigned for the purpose aforesaid, on paying such lawful license fee as may be required in the premises. Dated 18 No. 3. APPIiIOATION POB LICENSE TO SELL ALE AND BEEB. TO THE BOARD OF COMMISSIONEES OF EXCISE in and for the of County of The undersigned, applicant for License, respectfully represent that desirous to sell and dispose of Alb and Beeb in quantities less than five gallons at a time, to be drank on the premises, at of county of and pray on own behalf, as the only person intended to be interested in the business aforesaid that may have a license as above stated, pursuant to law, upon paying such Uoense fee as may be lawfully required in the premises. Dated 18 (Signed.) No. 4. BOND OF nW-KEEPEB. KNOW ALL MEN BY THESE PEESENTS, That we, of the of county of and State of New York, are held and firmly bound unto the People of the State of New York, in the penal sum of Two Hundeed and Fifty Dollabs, to be paid -se- to the said People ; for which payment well and truly to be made, we bind ourselves, our and each of our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals, dated the day of of one thousand eight hundred and Whebeas, The said intend keeping an Inn, Tavern or Hotel, at in the said and is an applicant to the Board of Commissioners of Excise of for a License to sell Strong and Spirituous Liquors and Wiaes, to be drank in the said Inn, Tavern or Hotel, to be kept as aforesaid, pursuant to the provisions of an act entitled: "An Act regulating the sale of intoxicating liquors," passed April 11th, 1870. Now, Thebepgee, the Condition oe this Obligation is such, that i£ the said during the time that he shall keep such Inn, Tavern or Hotel, wiU not suffer it to be disorderly, or suffer any gambling, keep a gambling table of any description within the Inn, Tavern or Hotel so kept by him, or in any out-house, yard or garden belonging thereto, then this obligation to be void ; else to remain in force. Signed, Sealed and Delivered ) in Presence of \ County of ss : On this day of A. D. 18 before me personally came to me known to be the individuals described in and who executed the foregoing Bond, and severally acknowledged that they exe- cuted the same for the uses and purposes therein mentioned. County of ss : of the in said county, being duly sworn, each for himself, doth depose and say, that he is worth the sum of five hundred dollars above all just debts and liabilities, and the deponents reside in the county of and State aforesaid. Sworn to before me, this day of 18 We, the undersigned. Commissioners of Excise of do hereby approve of the security to the above bond. Dated at this day of 18 —57— No, 5. BOND FOB STORE-KEEPEB's LICENSE. KNOW ALL MEN BY THESE PRESENTS, that we, of county of and state of New York, are held and firmly bound unto the People of the State of New York, in the sum of five hundred dollars, to be paid to the said People; for which payment, well and truly to be made, we bind ourselves, our and each of our heirs, execu- tors and administrators, jointly and severally, by these presents. Whereas, the said is an applicant to the Board of Commis- sioners of Excise of the for a license to sell strong and spiritu- ous liquors, wines, ale and beer, as a store-keeper, pursuant to the pro- visions of an act entitled ' ' An act to suppress intemperance and regulating the sale of intoxicating liquors,'' passed April 16, 1857, and the acts passed in addition and subsequenty thereto. Now, therefore, the Condition of this Obi/Igation is such, that if the said during the time he shall keep any store, will not, during the term for which such license shall be granted, suffer his place of business to become disorderly, and will not sell or suffer to be sold any strong or spirituous liquors, or wines, ale or beer, to be drank at said premises, or in his shop, or house, or in any out-house, yard or garden appertaining thereto, and that will not sufter any such liquors sold by virtue of such license to be drank in his sljop or house, or in any out-house, yard or garden belonging thereto, then this obhgation to be void, else to remain In force. Signed, sealed and delivered ) in the presence of \ County of ss; On this day of A. D., 18 , before me personally came , to me known to be the individuals described in and who executed the foregoing Bond, and severally acknowledged that they exe- cuted the same for the uses and purposes therein mentioned. County of ss: of the in said county, being duly sworn, each for himself, doth depose and say, that he is worth the sum of five hundred dollars above all just debts and liabilities, and that deponents reside in the county of and State aforesaid. Subscribed and sworn to, before me, this day of 18 . We, the undersigned, the Board of Commissioners of Excise of do hereby approve of the security to the above bond. Dated at this day of 18 . ) Commissioners ) of Excise. —68— No. 6. BOND FOR SAIjE OP AIiE AND BBBB. KNOW ALL MEN BY THESE PEESENTS, that we, of County of and State of New York, are held and firmly bonnd unto the People of the State of New York, in the penal sum of two hundred and fifty dollars, to be paid to the said People ; for which payment, well and truly to be made, we bind ourselves, our and each of our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals, dated the day of one thousand eight hundred and Whbbeas, the said is an applicant to the Board of Commis- sioners of Excise of ' for a License to sell Ale and Beer at his premises, in the according to the provisions of an act to amend an act entitled "An Act to suppress intemperance and to regu- late the sale of intoxicating liquors," passed April 16, 1857, and the acts supplemental thereto and amendatory thereof : Now, Thbebfobe, the condition of this obhgation is such, that if, during the term for which License shall be granted, will not suffer place of business to become disorderly, or suffer any gambling or keep any gambling table of any description within the premises so kept by and that will not sell or suffer to be sold, any strong or spirituous liquors or wines except Ale and Beer, at the place aforesaid, or in any out- house, yard or garden appertaining thereto, then this obligation to be void, else to remain in force. Signed, sealed and dehvered } in presence of \ County of - ss: On this day of A. D. , 18 , before me personally came to me known to be the individuals described in and who executed the foregoing bond, and severally acknowledged that they exe- cuted the same for the uses and purposes therein mentioned. The following forms are inserted as guides to the practitioner. It will, however, be necessary to refer to the several statutes in the work, and to alter each form according to the particular case. —59— No. 7. COMPLAINT UNBEE EXCISE LAW — ^INNKEBPBB, Court; County of The Board of Commissioner of Excise of the of in the countyj of against The Board of Commissioners of Excise of the of in the County of plaintiffs, complain of defendant and allege : I. That the said defendant did, on or about the day of 18 , at the of in said county, sell to a person, to the plaintiffs unknown. Strong and Spirituoiis Liquors, to wit : Wines, Bum, Gin, Brandy, Whisky, Ale and Strong Beer, to be drank in house or shop, and in an out-house, yard or garden appertaining thereto, and did suffer and permit such Uquors and wines sold by him, and under his direc- tion or authority, to be drank in his house or shop, and in an out-house, yard or garden thereto belonging, without having obtained a License there- for as an inn, tavern or hotelkeeper, granted according to law, contrary to and in violation of the provisions of the "Act to suppress intemperance and to regulate the sale of intoxicating hquors," passed April 16th, 1857, and the amendments thereto, whereby the defendant became indebted and liable to pay to the said plaintiffs the sum or penalty of fllty dollars for said offense. n. And for a second and further cause of action against said defendant the plaintiffs allege that the said defendant did, on or about the day of 18 , at the of in said county, sell to a person, to the plaintiffs unknown. Strong and Spirituous Liquors, to wit : Wines, Bum, Gin, Brandy, Whisky, Ale and Strong Beer, to be drank in his house or shop, and in an out-house, yard or garden aj)pertaining there- to, and did suffer and permit such liquors and wines sold by him, and under his direction or authority, to be drank in his house or shop, and in an out-house, yard or garden thereto belonging, without having obtained a License therefor as an inn, tavern or hotelkeeper, granted according to law, contrary to and in violation of the provisions of the " Act to suppress intemperance and to regulate the sale of intoxicating liquors," passed April 16, 1857, and the amendments thereto, whereby the defendant became in- debted and liable to pay to the said plaintiffs the sum or penalty of fifty dollars for said offence. -go- in. And for a third and further cause of action against said defendant, the plaintiffs allege that the said defendant did, on or about the day of 18 , at the of in said county, sell to a person, to the plaintiffs unknown. Strong and Spirituous Liquors, to wit : Wines, Rum, Gin, Brandy, Whisky, Ale and Strong Beer, to be drank in his house or shop, and in an out-house, yard or garden appertaining thereto, and did suffer and permit such liquors and wines sold by him, and under his direction or authority, to be drank in his house or shop, and in an out-house, yard or garden thereto belonging, without having obtained a License therefor as an inn, tavern or hotelkeeper, granted according to law, contrary to and in violation of the provisions of the " Act to suppress intemperance and to regulate the sale of intoxicating liquors," passed April 16, 1857, and the amendments thereto, whereby the defendant became in- debted and liable to pay to the said plaintiffs the sum or penalty of fifty dollars for said offense. rV. And for a fourth and further cause of action against said defendant the plaintiffs allege that the said defendant did, on or about the day of 18 , at the of in said county, sell to a person, to the plaintiffs unknown. Strong and Spirituous liquors, to wit : Wines, Rum, Gin, Brandy, Whisky, Ale and Strong Beer, to be drank in his house or shop, and in an ont-house, yard or garden appertain- ing thereto, and did suffer and permit such Liquors and Wines sold by him and under his direction or authority, to be drank in his house or shop, and in an out-house, yard or garden, thereto belonging , without having ob- tained a License therefor as an inn, tavern or hotelkeeper, granted accord- ing to law, contrary to and in violation of the provisions of the " Act to suppress intemperance and to regulate the sale of intoxicating liquors," passed April 16, 1857, and the amendments thereto, whereby the defendant became indebted and liable to pay to the said plaintiffs the sum or penalty of fifty dollars for said offense. Wherefore, the said plaintiffs demand judgment against the said defend- ant for four penalties of fifty dollars each, making in the whole the sum of two hundred dollars, besides costs. Plaintiffs' Attorney. No. 8. INDICTMENT FOE SBLIilNG ON SIJNDAT. Li the Court of of the County of Of Term, in the year of our Lord one thousand eight hun- dred and City and County of ss: —61— 27ie Jurors for the People of the State of New York in and for the body of the , being then and there sworn and charged, upon their oath. Present, that late of the of the in the County of aforesaid, did on Sunday, to wit, on the day of in the year of our Lord one thousand eight hundred and at the of in the County of aforesaid, wUKully, unlawfully and maliciously seU to divers citizens of this State, and to divers persons whose names are to the jurors aforesaid unknown, and did cause to be sold to divers citizens of this State, and to divers persons whose names are to the jurors aforesaid un- known, intoxicating liquors and wines, to wit : one pint of wine, one pint of brandy, one pint of gin, one pint of rum, one pint of whisky, one pint of ale, one pint of beer, one pint of lager beer and one pint of cordial, as a beverage, in contempt of the People of the State of New York against the form of the statute in such case made and provided, and against the peace of the People of the State of New York and their dignity. Second Count. And the jurors aforesaid, upon their oath aforesaid, do further present : That late of the , in the County of aforesaid, did on Sunday, to wit, on the day of in the year of our Lord one thousand eight hundred and at the of in the County of aforesaid, willfully, unlawfully and maliciously give away to divers citizens of this State and to divers persons whose names are to the jurors aforesaid un- known, and did cause to be given away to divers citizens of this State and to divers persons whose names are to the jurors aforesaid unknown, intoxi- cating liquors and wines, to wit : one pint of wine, one pint of brandy, one pint of gin, one pint of rum, one pint of whisky, one pint of ale, one pint of beer, one pint of lager beer and one pint of cordial, as a beverage, in contempt of the People of the State of New York, against the form of the statute in such case made and provided, and against the peace of the People of the State of New York and their dignity. Third Count. And the jurors aforesaid, upon their oath aforesaid, do further present : That late of the , in the County of aforesaid w at the time of the commission of the offense here- inafter stated inn, tavern and hotel-keeper and that so being inn, tavern and hotel-keeper , said did on Sun- day, to wit, on the day of in the year of our Lord one thousand eight hundred and at the of in the County of aforesaid, wiUfuUy, unlawfully, and maliciously sell to divers citizens of this State and to divers persons whose names are to the jurors aforesaid unknown, and did cause to be sold to divers citizens of this State and to divers persons whose names are to the jurors aforesaid unknown, intoxicating Kquors and wines, to wit : one —62— pint of wine, one pint of brandy, one pint of gin, one pint of rum, one pint of wMsky, one piat of ale, one pint of beer, one pint of lager beer and one pint of cordial, as a beverage, in contempt of the People of the State of New York, against the form of the statute in such case made and provided, and against the peace of the People of the State of New York and their dignity. FoTiBTH OoTiNT. And the jurors aforesaid, upon their oath aforesaid, do further present : That late of the , in the County of aforesaid, w at the time of the commission of the offense here- inafter stated inn, tavern and hotel-keeper and that so being inn, tavern and hotel-keeper said did on Sunday, to wit, on the day of in the year of our Lord one thousand eight hundred and at the of iu the County of aforesaid, willfully, unlawfully and mali- ciously give away to divers citizens of this State and to divers persons whose names are to the jurors aforesaid unknown and did cause to be given away to divers citizens of this State and to divers persons whose names are to the jurors aforesaid unknown, intoxicating liquors and wines, to wit : one pint of wiue, one pint of brandy, one pint of gin, one pint of rum, one pint of whisky, one pint of ale, one pint of beer, one pint of lager beer and one pint of cordial, as a beverage, in contempt of the People of the State of New York, against the form of the statute in such case made and pro- vided, and against the peace of the People of the State of New York and their dignity. District Attorney. JSTo. 9. nOJICTMBNT FOE SELLING lilQTJOE ON ELECTION DAT. In the Court of of the County of Of Term, in the year of our Lord, one thousand eight hundred and ss : The Jurors for the People of the State of New York, in and for the body of the , being then and there sworn and charged upon their oath. Present, that late of the , in the County of aforesaid, upon a day on which a was held in the of in said county, and within one-quarter of a mUe from the place where such was then and there held, to wit, on the day of in the year of our Lord, one thousand eight hundred and at the said of in —63— the County of aforesaid, willfully, unlawfully and maliciously did sell to divers citizens of this State and to divers persons whose names are to the jurors aforesaid unknown, and did cause to be sold to divers citizens of this State and to divers persons whose names are to the jurors aforesaid unknown, intoxicating liquors and wines, to ■wit : one pint of wine, one pint of brandy, one pint of gin; one pint of rum, one pint of whisky, one pint of ale, one pint of beer, one pint of lager beer and one pint of cordial, as a beverage, in contempt of the People of the State of New York, against the form of the statute in such case made and provided, and against the peace of the People of the State of New York and their dignity. Second Count. And the jurors aforesaid, upon their oath aforesaid, do further present : That late of the , in the County of afore- said, upon a day on which a was held iu the of in said county, and within one- quarter of a mile from the place wherg such was then and there held, to wit, on the day of in the year of our Lord one thousand eight hundred and at the said of in the County of aforesaid, did wiUfully, unlawfully and maliciously give away to divers citizens of this State and to divers persons whose names are to the jurors aforesaid unltnown, and did cause to be given away to divers citizens of this State and to divers persons whose names are to the jurors aforesaid unknown, intoxicating liquors and wines, to wit: one pint of wine, one pint of brandy, one pint of gin, one pint of rum, one pint of whisky, one pint of ale, one pint of beer, one prat of lager beer and one pint of cordial, as a beverage, in contempt of the People of the State of New York, against the form of the statute in such case made and provided, and against the peace of the People of the State of New York and their dignity. Thihd Coitnt. And the jurors aforesaid, upon their oath aforesaid, do further present : That late of the in the County of aforesaid, IV at the time of the commission of the offense hereinafter stated inn, tavern and hotel- keeper , and that so being inn, tavern and hotel-keeper , said upon a day on which a ' was held in the of in said County, and within one-quarter of a nule from the place where such was then and there held, to wit, on the day of in the year of our Lord, one thousand eight hundred and at the said of in the County of afore- said, did willfully, unlawfuUy and maliciously seU to divers citizens of this State and to divers persons whose names are to the jurors aforesaid unknown, and did cause to be sold to divers citizens in this State and to divers persons whose names are to the jurors aforesaid unknown, intoxicat- ing Uquors and wines, to wit: one pint of wine, one pint of brandy, one pint of gin, one pint of rum, one pint of whisky, one pmt of ale, one pmt —64— of beer, one pint of lager beer and one pint of cordial, as a beverage, in contempt of the People of the State of New York, against the form of the statute in such case made and provided, and against the peace of the People of the State of New York and their dignity. FoTTBTH Count. And the jurors aforesaid, upon their oath aforesaid, do further present: That late of the , in the County of afore- said, w at the time of the commission of the offense hereinafter stated inn, tavern and hotel-keeper , and that so being inn, tavern and hotel-keeper said upon a day on which a was held in the of in said County, and within one- quarter of a mile from the place where such was then and there held, to wit, on the day of in the year of our Lord, one thousand eight hundred and at the said of in the County of aforesaid, did willfully, un- lawfully and maliciously give away to divers citizens of this State and to divers persons whose names are to the jurors aforesaid unknown, and did cause to be given away to divers citizens of this State and to divers per- sons whose names are to the jurors aforesaid unknown, intoxicating liquors and wines, to wit : one pint of wine, one pint of brandy, one pint of gin, one pint of rum, one pint of whisky, one pint of ale, one pint of beer, one pint of lager beer ajid one pint of cordial, as a beverage, in contempt of the People of the State of New York, against the form of the statute in such case made and provided, and against the peace of the People of the State of New York ajid their dignity. District Attorney. No. 10. INDICTMENT FOB NOT CliOSING LICENSED PLACE. In the Court of of the County of Of Term, in the year of our Lord one thousand eight hun. dred and The Jurors for the People of the State of New York, in and for the body of the , being then and there sworn and charged, upon their oath Present, that late of the in the Cotmty of aforesaid w at the time of the commission of the offense hereinafter stated person licensed to sell liquors, and that so —65— being person licensed by the Board of Excise of the of in said County of , by a License permitting h to sell and dispose of, at a named place Tvithin such Strong or Spirituous Liquors, Wines, Ale and Beer, in quantities less then five gallons at a time ; and that said so being then and there person so licensed to sell Strong or Spirituous Liquors, Wines, Ale and Beer, and then and there having, at and in said licensed place, a place for the sale thereof, at a time when such selling was not authorized by law, to wit, on the day of in the year of our Lord one thoiisand eight hundred and at the said of willfully, unlawfully and maliciously did not close and keep closed h said place so hcensed as aforesaid, the said place not being then and there kept open as a hotel to receive or entertain travelers, in contempt of the People of the State of New York, against the form of the statute in such case made and provided, and against the peace of the People of the State of New , York and their diginity. Second Ootjnt. And the jurors aforesaid, upon their oath aforesaid, do further present : That late of the , in the County of aforesaid, w at the time of the commission of the offense hereinafter stated person licensed to sell liquors, and that so being person licensed by the Board of Excise of the of in said County of , by a license permitting h to seU and dispose of, at a named place within such Strong or Spirituous Liquors, Wines, Ale and Beer, in quantities less then five gallons at a time ; and that said so being then and there person so hcensed to sell Strong or Spirituous Liquors, Wines, Ale and Beer, and then and there having, a-fc and in said licensed place, a place for the sale thereof, at a time when such selling was, not authorized by law, to wit, on ^Q day of in the year of our Lord one thousand eight hundred and at the said of willfully, unlawfully and maliciously did not close and keep closed h said place so licensed as aforesaid, but the said did then and there keep open h said place so licensed as aforesaid for a long time, to wit, for the space of one hour, for the purpose of transactfng and doing business therein, and for the sale therein of Strong and Spirituous Liquors, Wines- Ale and Beer, the said place not being then and there kept open as a hotel to receive or entertain travelers, in contempt of the People of the State of New York, against the form of the statute in such case made and provided, and against the peace of the People of the State of New York and their dignity. TmBD OoTTNT. And the jurors aforesaid, upon their oath aforesaid, do further present : That late of the , in the County of aforesaid w at the time of the commission of the offense here- —66— inafter stated person licensed by tlie Board of Excise of the of ia said county uf , by a License per- mitting h to sell and dispose of, at a named place, within such Strong and Spirituous Liqnors, Wines, Ale and Beer, in quantities less than five gallons at a time ; and that said so being then and there person so licensed to sell Strong or Spirituous Liquors, Wines, Ale and Beer, and then and there having a place, at and in said licensed place, for the sale thereof, at a time when such selling was not authorized by law, to wit, on the day of in the year of our Lord, one thousand eight hundred and at the said of willfully, unlawfully and maliciously did not close and keep closed h said place so licensed as aforesaid ; but the said did then and there keep open h said place so licensed as aforesaid, for a long time, to wit, for the space of one hour> for the purpose of transacting and doing business therein, and for the sale therein of Strong and Spirituous Liquors, Wines, Ale and Beer, the said place not being then and there kept open as a hotel to receive or entertain travelers, and did then and there expose for sale and sell at and in said licensed place, to divers persons whose names are to the jurors aforesaid unknown, intoxicating liquors and wines, to wit : one pint of wine, one pint of brandy, one pint of gin, one pint of rum, one pint of whisky, one pint of ale, one pint of beer, one pint of lager beer and one pint of cor- dial, in contempt of the People of the State of New York, against the form of the statute in such case made and provided, and against the peace of the People of the State of New York and their dignity. FouETH Count. And the jurors aforesaid, upon their oath aforesaid, do further present: That late of the , in the County of aforesaid, did on Sunday, to wit, onHhe day of in the year of our Lord, one thousand eight hundred and at the of in the County of aforesaid, willfully, unlawfully and maliciously sell to divers citizens of this State and to divers persons whose names are to the jurors aforesaid unknown, and did cause to be sold to divers citizens of this State and to divers persons whose names are to the jurors aforesaid unknown, intoxicating liquors and wines, to wit : one pint of wine, one pint of brandy, one pint of gin, one pint of rum, one pint of whisky, one pint of ale, one pint of beer, one pint of lager beer and one pint of cordial, as a bevemge, in contempt of the People of the State of New York, against the form of the statute in such case made and provided, and against the peace of the People of the Statg of New York and their dignity. Fn'TH CoTTNT. And the jurors aforessid, upon their oath aforesaid, do further present : That late of the , in the County of aforesaid, did, on Sunday, to wit, on the day of in the year of our Lord, one thousand eight hundred and —67— at the of in the County of aforesaid, ■willfully, unlawfully and maliciously give away to divers citizens of this State and to divers persons whose names are to the jurors aforesaid un" known, and did cause to be given away to divers citizens of this State and to divers persons whose names are to the jurors aforesaid unknown, intoxi- cating liquors and wines, to wit : one pint of wine, one pint of brandy, one one pint of gin, one pint of rum, one pint of whisky, one pint of ale, one pint of beer, one pint of lager beer and one pint of cordial, as a beverage, in contempt of the People of the State of New York, against the form of the statute in such case made and provided, and against the peace of the People of the State of New York and their dignity. Sixth Cotint. And the jurors aforesaid, upon their oath aforesaid, do further present : That late of the , in the County aforesaid. w at the time of the commission of the offense hereinafter stated inn, tavern and hotel-keeper , and that so being inn, tavern and hotel-keeper , said did, on Sunday, to wit, on the day of in the year of our Lord, one thousand eight hundred and at the of in the County of aforesaid, willfully, unlawfully and maliciously sell to divers citizens of this State and to divers persons whose names are to the jurors aforesaid unknown, and did cause to be sold to divers citizens of this State, and to divers persons whose names are to the jurors afore- said imknown, iatoxicating liquors and wines, to wit : one pint of wine, one pint of brandy, one pint of gin, one pint of rum, one pint of whisky, one pint of ale, one pint of beer, one pint of lager beer and one pint of cor- dial, as a beverage, in contempt of the People of the State of New York, against the form of the statute m such case made and provided, and against the peace of the People of the State of New York and their dignity. Seventh Count. And the jurors aforesaid, upon their oath aforesaid, do further present : That late of the , in the County of aforesaid, w at the time of the commission of the offense hereinafter stated inn, tavern and hotel-keeper , and that so being inn, tavern and hotel-keeper , said did, on Sunday, to wit, on ^]^g (Jay of in the year of our Lord, one thousand eight hundred and at the of in the County of aforesaid, wiUfuUy, unlawfully and maliciously give away to divers citizen of this State and to divers persons whose names are to the jurors aforesaid unknown, and did cause to be given away to divers citizens of this State and to divers persons whose names are to the jurors aforesaid unknown, intoxicating Liquors and wines, to wit: one pint of wine, one pint of brandy, one pmt of gin, one pmt of rum, one pint of whisky, one pint of ale, one pint of beer, one pint of lager beer and one pint of 'cordial, as a beverage, in contempt of the People of the State of —68— iiew York, against the form of the statute in such, case made and provided, and against the peace of the People of the State of New York and their dignity. District Attorney. No. 11. IiIOENSB TO SELIi STEONG AND SPIBITUOTJS LIQUOBS, AND WINES, AliB AND BEEB. License Expires 18 . No. THE BOARD OF EXCISE of hereby certifies that being satisfied that of good moral character, that he ha sufficient ability to keep an Inn, Tavern or Hotel, and the necessary accom- modations to entertain travelers, and that an Inn, Tavern or Hotel is required for the actual accommodation of travelers at the place where such applicant resides or proposes to keep the same : No-w, therefore, a License is granted to permittiag to sell and dispose of Steong and Spir- ETUOtrs LiQtroES, Wines, AiE and Bbeb, in quantities less than five gallons at a time, to be drank on the premises of said at excepting on Sundays or election days, or between one and five o'clock, A.M., for one year from date hereof, pursuant to the provisions of the Act of the Legislature of the State of New York, passed April 11, 1870, en- titled " An Act to regulate the sale of intoxicating liquors," and of the Acts amendatory thereof. This License is granted and accepted upon the express co^idition that the holder shall conform to the requirements of the said Acts of the Legisla- ture, and that in case of any breach of such condition this License immedi" ately shall be and become null and void. Witness our hands this day of 18 . I Commissioners \ of Excise of Clerk. This License must be kept in a conspicuous place. No. 12. BTOEE-KEEPEE S LICENSE TO SELL STBONG AND SPIBlmOTJS LIQUOES AND WINES, ALE AND BEEB. License expires 18 . No. THE BOARD OF EXCISE of hereby certifies that a License is granted to permitting to sell and dispose of Strong and Spirituous Liquoes, Wines, Alb and Beer, in quantities —69— less than five gallons at a time, at excepting on Sundays oi' election days, or between one and five o'clock in the morning, but not to drank in h shops, housse, out-houses, yards or gardens, for one year from date hereof, pursuant to the provisions of the Act of the Legis- lature of the State of New York, passed April 11, 1870, entitled "An Act to regulate the sale of intoxicating liquors. " This License shall not be deemed to authorize the sale of any strong or spirituous liquors or wine to be drank in the house or shop of the person receiving the same, or in any out-house, yard or garden appertaining thereto or connected therewith, and is granted and accepted upon the express condition that the holder shall conform to the requirements of the said Act of the Legislature, and that in case of any breach of such condition this License immediately shall be and become null and void. Witness our hands this day of 18 . ) Commissioners I of Excise of Clerk. litis License must be kept in a conspicuous pln.ce. Eo. 13. LICENSE TO SBIili AIjE AND BEEE ONLY. License expires , 18 . No. THE BOAED OF EXCISE of hereby certifies that a License is granted to permitting to sell and dispose of Ale and Bbeb only, in quantities less than five gallons at a time, at excepting on Simdays or election days, or between one and five o'clock a.m,, for one year from date hereof, pur" suant to the provisions of Chapter 856 of the Laws of 1869. This License is granted and accepted upon the express condition that the holder shall conform to the requiremants of the said Act of the Legislature, and that in case of any breach of such condition this license immediately shall be and become null and void. Witness our hands this day of 18 . \ Comm,issioners \ of Excise of Clerk. This License must be kept in a comj^icuotts place. INDEX. A. ACTIONS against seller of liquors, 49. ^ ALDERMAN, mayor to nominate commissioners to board of, 15. rejection of commissioners by board of, 15. ALE AND BEEE, license for selling, 36. sale of, act to apply, 36. form of application for license to sell, 55. form of bond for license, 58. APPLICATION for license, how made, 18, 26. APPRENTICE, not to sell liquors to, 32. ABEEST of persons violating act, 33. ATTORNEYS may be employed by commissioners of excise, 16, 23. legal fees and disbursements, how paid, 16. B. BAIL, in what cases to take, 33, 34. BEER, embraced under strong and spirituous liquors, 30. when to license selling of, 18. BOARD of excise to keep records, 19. BONDS, to be executed by hotels, 27. form of, for hotels, 55 . to be filed, 40. breach of, 40. suit upon, 40. form to sell ale and beer, 58. BLANKS for commissioners, how paid, 22. BOOKS for commissioners, how paid, 22. BROOIiLYN, commissioners, how appointed, 15. salary of commissioners, 15. CITIES License, fee in, 18. CIVIL Damage Act, 49. CHILD may maintain action against seller, 49. —71— CHILD EEN not to be admitted to saloons, 48. CLOSED, place to be, 20. COMMISSIONERS of excise, how composed, 13. of excise in cities, hovr appointed, 13. of excise in villages, 13. of excise in towns, 13. of excise pay of, in towns, 22. of excise in Brooklyn and New York, how appointed, 15. of excise, duties of, 14. of excise term of office in cities, 15. of excise in towns not to grant licenses in incorporated villages, 13. of excise to be elected, 14. of excise, compensation of, 14. of excise to be classified, 14. of excise to be elected annually, 14. of excise, vacancies, 14. of excise to be voted for on separate ballot, 15. of excise, oath of office, 15. of excise, bond of, 15. of excise, appointment in cities, 15, 16. of excise, present to hold until others are appointed, 15. of excise term of office, 15. of excise salary of, in cities, 15. of excise triennial appointment of, 15. of excise, vacancies in cities, 15. of excise in cities, removal of, 15. of excise, power appointing in cities, 16. of excise may employ an attorney, 16. of excies fees and disbursements of, 16. of excise may summon witnesses, 22. of excise, power of, to license hotel, 24. of excise, power of, to license store-keeper, 24. of excise to sign licenses, 24. of excise to make annual reports, 24. of excise, contents of report, 25. OOMMISSIONEKS of Excise report to be verified by oath of, 25, CONSTABLE, duties of, 20, 33. COMPLAINT, form of, 59. COMPANIES, incorporated employment of intoxicated persons by, 43. COURTS to instruct grand jurors, 42. COURT HOUSES, sale of liquor in, 49. D. DAMAGES in civil action, 50. plaintiff may recover, 50. —73— DAYS wlien sales are prohibited, 38. DEOLARATOEY of chap. 145, Laws of 1879, 17. DISTBICT ATTOENEY, duties of, 34 E. ELECTION DAY, not to sell, 38. form of indictments for selling on, 62. EMPLOYER may maintain action against seller. 49. EXCISE BOAED, Metropolitan repeal of, 21. meeting of, 18. EXCISE MONEYS, how disposed oi, 15. F. FINES AND PENALTIES, to be reported to board of supervisors, 24. FOEM OF application for innkeepers license, 54. application for storekeepers' license. 55. application for license to sell ale and beer, 55. bond of innkeeper, 55. bond for storekeeper's Kcense, 57. bond for ale and beer, 58. complaint against innkeeper under excise law, 59. indictment far selling on Sunday, 60. indictment for selling liquor on election day, 62. indictment for not closing licensed place, 64. license to sell strong and spirituous liquors, and wines, ale and beer, 68. storekeepers license to sell strong and spirituous liquors, wines, ale and beer, 68. license to sell ale and beer only, 63. G. GEAND JUEOES to be instructed by Court. 42. GUAEDLIN may maintain action against seller, 49. not to sell liquor to minor without consent of, 32. penalty for selling without consent of, 32. H. HABITUAL Drunkards, not to sell to, 37. HOTEL License to, not transferable, 18. entertaining travelers, 21. ^ license to, when expires, 18. —73— Kcense fee in cities, 19. lincense how granted, 18, 26. license fee in towns and villages, 18. license, form of, 68. license to be posted in room, 18. when not to sell. 20. definition of, 28. HOTEL-KEEPERS not to trust liquor, 29. securities given to, for liquor void, 29. action against, 30. HOTES to give bonds for license, 27, 29, HOTEL-KEEPEE, what to be kept by, 27. to put up signs, 28. HOUSE OF REFUGE, use of liquors in, 48. HUSBAND may maintain action against seller, 49. I. IMPRISONMENT for intoxication, when, 33. INDIANS, not to sell to, 31. fine for selling to, 32. INDICTEENT for granting hcense illegally, 21. when to issue, 37, 40. form of, for selling on Sunday. 60. form of, for selling on election day, 64. form of, for not closing place, 64. INN-KEEPEER not to sell by the gallon, 29. form for application for license, 54. form of bond of, 55. INNS, license for, of. 68, INN, what e(3nstitutes one, 28. see Hotel. INNKEEPERS to give bond, 27, 29. what to be kept by, 27. INTOXICATION, arrest for, 34. pnuishment for, 34, INTOXICATED persons, not to s.41 to, 36, 87. INTEMPERATE parsons, employment of, 43. INT0XIC.4.TED persons injured miiy maintain action against seller, 49. INTOXICATION in public place, 33. INTOXICATING liquors, what are, 30. INTOXICATED person, 36. —74— JAIL, limits -where no, 44. use of liquors in, 48. JUSTICES OF PEACE, jurisdiction of, 49. JUVENILE REFORMATORIES, liquors in, 48. L. LAGER BEER, what, 36. LAI^DLORDS AND TENANTS, act defining rights and responsibilities. of, 53. LIABILITY, of commissioners of excise, 19. LICENSE, in incorporated villages, 13. T^hen to expire, 18. to be kept posted, 18. fee, 18. selling -without, a misdemeanor, 21. Tvhen forfeited, 22. to be signed by commiseioners, 24. -when not to be granted, 29. not a contract, 30. revoking of, 41. effect of revoking, 42. forms of — see appendix. LIQUORS, license for selling, 18. ■when not to be sold. LICENSE, to -whom granted, 18. evidence to obtain, 18. LICENSES, record to be l^ept of aU, 18. LICENSE, -when forfeited, 22. to sell five gallons or over, 18. must be in writing, 19. LICENSES in what cases granted, 20. LICENSE LAW 1857, how applicable, 21 LICENSE FEE, how disposed of, 22. LICENSE, when to cancel, 22. for liquors sold on premises, 26. not to be drank in house, shop, &o., 29. to keep tavern without including license to sell liquors, 33. for sale of ale and beer, 36. Y violation of, suit for penalty or suit on bond, 41. LIQUORS trusted, no recovery for, 29. M. MAGISTEATES, duty of on ooinplaints, 33. to issue warrants, 33. duty of, persons intoxicated, 34. duty of on complaint of wife, husband, &c. , 37. MAY(_)K, where to appoint commissioners, 15. to nominate co)nmiBsioners in New York and Brooklyn, 15. MINOR, not to sell hquor to, 32. penalty for selluig to, 32. METROPOLirAN POLICE DISTRICT excepted, 35. MINUTE BOOK, of where deposited, 22. l^nSDEMEANOR, selling without a Ucense, 20. Selling to Indians, 32. MONIES license, in towns and villages to whom paid, 22. in cities to whom paid, 22. N. NEW YORK CITY COMMISSIONERS, how appointed, 15. salary of, 16. how paid, 16. o. OFFICERS, duty of, 21, 34. ^/ ^ ,,' , C OFFENSE, intoxication an, 35. C^/'-^ ""/ '<"•'' ' ' '' ' " ORANGE COUNTY, disposition of excise monies. 47. OVERSEERS OF THE POOR, duty of, 37, 39. 43. PARENT may maintain action against seller. 49. PAUPERS, not> seU to, 37. PENALTY, who may prosecute, 43. 3^ ior selling less than five gallons, '30. for selling to be drank in house, 31. for selling to Indians, apprentice or minor, 32. for neglect of officers as to intoxicated persons, 34. for selling on election day, Sunday and town meeting, 38. PENALTIES, how recovered, 39. PENALTY for admitting children to saloons, 48. for selling liquors in court houses, 49. ^ PENITENTARIES, use of liquors m, 48. POOR-HOUSES, use of liquors in, 48. POLICEMAN, duties of, 21. — 7R— POOE, surplus moneys for support of, 22. PE0TECT0BIE8, use of liquors in, 48. PRISONS, use of liquor in, 48. PUNISHMENT for intoxication of milroiul employees, 44. R. KATL BOAD Employees, punishment of, for intoxicatitm, 44. EEPOET of acts, 44. SATiABY of commissioners in oitiet., 16. of commissioners in towns, 14. SALOONS, children not to be admitted to, 44. SECUBITIES taken by tavern-keepers, 29. SIGNS to be put up by hotel-keepers, 28. SHEEIFF, duties of, 20, 33. fees of, how paid, 17. STOEE-KEEPEES, form of license to, fi8. license to, 24. form of, bond of, 57. form of application, 55. SUNDAY, not to sell on, 38. form of indictment for selling on, 60. SUPEBVIS0E8, commissioners to report to, 24. report to, must be in writing, 25. report to, what to contain, 25. report to, must be Yr.'rifi(