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 "■ Decisions relating to the Liquor Tax Law 
 
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DECISIONS 
 
 RELATING TO 
 
 THE LIQUOR TAX LAW 
 
 OF THE 
 
 /STATE OF NEW YORK 
 
 Reported in New York Reports, Vols. 149 to 157, inclusive; Appellate 
 
 Division Reports, Vols. 4 to 36, inclusive; Miscellaneous Reports, 
 
 Vols. 17 to 23, inclusive, and miscellaneous unreported 
 
 decisions, chronologically arranged. 
 
 ARRANGED BY 
 
 WILLIAM E. SCHENCK, 
 
 Assistant Counsel, State Department of Excise. 
 
 VOLUJvIE I. 
 
 Prepared under the direction of 
 Patrick W. Cullinan, State Commissioner of Excise. 
 
 ALBANY 
 
 Bkandow Printing Company 
 
 state printers 
 
 1905 
 
PREFACE. 
 
 The Legislature of 1S9G, by enacting the Liquor Tax Law, aban- 
 doned the system of granting licenses at the will of local boards of 
 excise established in cities and towns of the State. Under that 
 system, those engaged in the traffic were annually at the mercy of 
 the officials in whom the licensing power was vested, and were 
 continually under the influence of such officials, because they had 
 the power of revoking licenses. Under the new system, uniform 
 and fixed rates of taxation were established, on payment of which, 
 any person not expressly prohibited might obtain a liquor tax 
 certificate permitting the traffic in liquors at any designated place 
 wherein traffic was not expressly prohibited by statute, and while 
 the right to engage in the traffic in liquors was still a privilege, it 
 was a privilege to which all persons desiring the same had equal 
 rights under the statute. Furthermore, citizens complaining 
 against those engaged in the traffic were no longer compelled to 
 appeal for relief from officials, whose action in the discharge of 
 their duties, had- been characterized by corruption, favoritism, 
 partisanship or fraud, but on proof of any infraction of the law 
 could obtain relief as a matter of legal right in the courts. 
 
 A comparison of the reported cases arising under the excise 
 laws in force immediately prior to the enactment of the Liquor 
 Tax Law with the reported cases involving the provisions of the 
 latter statute, shows a large increase which reflects this difference 
 between the new and the old system. 
 
 It is therefore of importance, not only that the Liquor Tax Law 
 and its amendments, defining the rights of those engaged in the 
 traffic and of others affected by it, should be published and dis- 
 tributed, but that the opinions of the courts construing the statute, 
 should also be collated and published. 
 
 In view of the fact that the administrative, executive and judi- 
 cial officers whose function it is to carry out one or another of the 
 various provisions of the Liquor Tax Law, hold office for limited 
 periods, and those who have become efficient through experience 
 are succeeded by those inexperienced in excise matters, it should 
 not be necessary for the latter to search the session laws for amend- 
 ments to the general act which regulates the traffic in liquors, 
 or to rely upon the digests annually published, imperfectly citing 
 the reported decisions of the courts in relation to the Liquor Tax 
 Law. Information about this statute, which annually returns a 
 revenue of upwards of $18,000,000, and which regulates a business 
 
Preface. 
 
 directly or indirectly affecting the personal interests of citizens 
 everywhere, and in many ways affecting the social welfare of every 
 community, should be accessible, and the extent to which it is 
 accessible, will largely determine the intiuenc'e which those in 
 authority exert to execute the law. 
 
 The State Commissioner of Excise, as a necessary party to all 
 civil litigation in any manner affecting the enjoyment of the 
 privileges or the operation of the restrictions provided for in the 
 Liquor Tax Law, has endeavored to aid in securing a uniformity 
 of construction, by furnishing the courts with complete informa- 
 tion as to previous decisions. It will be in furtherance of that 
 policy to publish these reports, containing all opinions hereto- 
 fore handed down, and hereafter, to piiblish from time to time 
 supplemental volumes, containing new decisions. 
 
 PATRICK W. CULLINAN, 
 tState Commissioner of Excise. 
 
 Dated. Albany, September 5, 1905. 
 
THE LIQUOR TAX LAW. 
 
 Being Chapter 112, of the Laws of 1896. 
 
 AN ACT in relation to the traflBc in liquors, and for the taxation 
 and regulation of the same, and to provide for local option, 
 constituting chapter twenty-nine of the General Laws. 
 
 Became a law March 23, 1896, with the approval of the Governor. Passed, 
 three-fifths being present. 
 
 The People of the State of Neiv Yorl\ represented in Senate and 
 Assenibly, do enact as follows: 
 
 CHAPTER XXIX OF THE (GENERAL LAWS. 
 
 THE LIQUOR TAX LAW. 
 
 Section 1. Short title. 
 
 2. Definitions. 
 
 3. Abolition of boards of excise, and their powers and 
 
 duties. 
 
 4. The continuance of licenses. 
 
 .5. The duties of existing boards of excise. 
 
 6. State commissioner of excise. 
 
 7. Office of state commissioner. 
 
 5. Deputy commissioner; secretary, clerks. 
 
 9. Special deputy commissioner in certain counties. 
 
 10. Special agents; attorneys. 
 
 11 . Excise taxes upon the business of trafficking in liquors. 
 
 12. Tax, when due and payable. 
 
 13. Officers to whom the tax is to be paid, and how dis- 
 
 tributed. 
 
 14. Compensation of county treasurers. 
 
 15. Books and blanks to be furnished by state commis- 
 
 sioner of excise. 
 
 16. Local option to determine whether liquor shall be sold 
 
 under the provisions of this act. 
 
 17. Statements to be made upon application for liquor 
 
 tax certificate. 
 
vi Statutes. 
 
 Section 18. Bonds to be given. 
 
 19. The payment of the tax and issuing of the tax cer- 
 
 tificate. 
 
 20. Form of liquor tax certificate. 
 
 21. Posting liquor tax certificate. 
 
 22. Restrictions on the trafiic in liquors in connection 
 
 with other business. 
 
 23. Persons who shall not traffic in liquors and persons 
 
 to whom a liquor tax certificate shall not be granted. 
 
 24. Places in which traffic in liquor shall not be permitted. 
 2.5. Surrender and cancellation of liquor tax certificates. 
 
 26. Changing place of traffic. 
 
 27. Voluntary sale of liquor tax certificate. 
 
 28. Certiorari upon refusal to issue or transfer liquor tax 
 
 certificates; revocation end cancellation of liquor 
 tax certificates. 
 
 29. Injunction for selling without liquor tax certificate. 
 
 30. Persons to whom liquor shall not be sold or given. 
 
 31. Other illegal sales and selling. 
 ?)2. Sales and pledges; when void. 
 
 33. Persons liable for violation of this act. 
 
 34. Penalties for violations of this act. 
 ■iR. Jurisdiction of courts. 
 
 3C. Collection Of fines and penalties and forfeiture of 
 bonds. 
 
 37. Duties of public officers, in relation to complaints and 
 
 prosecutions under this act. 
 
 38. Penalties for neglect of public officers to perform their 
 
 duty under this act. . 
 
 39. Recovery of damages in a civil action. 
 
 40. Intoxication in a public place. 
 
 41. Employment of persons addicted to intoxication by 
 
 common carriers. 
 
 42. Violations of this act generally. 
 
 43. Distribution of copies of this act by the secretary of 
 
 state. 
 
 44. Laws repealed; saving clause. 
 
 45. When to take effect. 
 
Statutes. vii 
 
 Section 1. Short title. — This chapter shall be known as the 
 liquor tax law. (Then follow sections 2 to 45 inclusive.) 
 
 AMENDMENTS. 
 
 The original act, L. 1896, chap. 112, known as the Liquor Tax 
 Law, became a law on March 23, 1896, and went into effect imme- 
 diately. A slight change in § 24, sub. 1, was made by L. 1896, 
 chap. 445, which went into effect on May 9, 1896. The first general 
 amendatory act, L. 1897, chap. 312, amending §§ 2, 6, 8, 9, 10, 11, 
 13, 15, 16, 17, 18, 19, 21, 22, 23, 24, 25, 27, 28, 29, 80, 31, 32, 34, 
 35, 36, 37, 40, 42, and adding § 35a, became a law and went into 
 effect on April 20, 1897. The next amendatory act, L. 1898, chap. 
 167. amending § 9 and § 14, became a law and went into effect 
 on March 29, 1898. The next amendatory acts were L. 1899, chap. 
 398, amending § 16 and § 34, and L. 1899, chap. 434, amending 
 § 9, which went into effect on April 21, 1899, and April 25, 1899, 
 respectively. The next amendatory acts were L. 1900, chap. 257, 
 amending § 9, which became a law on March 30, 1900, and went 
 into effect on June 1, 1900, and L. 1900, chap. 80, which went 
 into effect March 7, 1900, and remained in force until the enact- 
 ment of L. 1900, chap. 367, amending §§ 11, 13, 16, 17, 
 23, 25, 28, 31, 34, 37, and adding § 25a, which became 
 a law and went into eft'ect on April 10, 1900. The next amend- 
 atory act was L. 1901, chap. 640, which became a law on May 2, 
 1901, and went into effect immediately. It amended §§ 6, 11, 16, 
 21, 28 and 31 ; added § 31a, and repealed L. 1900, chap. 367, § 8, 
 which added § 25a. The next amendatory acts are L. 1903, chap. 
 115, which repeals chap. 442, L. 1897 an act supplementary to the 
 Liquor Tax Law, and amends §§ 11, 13, and 25 ; and L. 1903, chap. 
 486, which amends §§ 2, 8, 9, 10, 11, 13, 14, 15, 18, 21, 25, 28, 31, 
 31a, 34, 36 and 37. These acts went into effect April 2, 1903, and 
 May 8, 1903, respectively. 
 
 The next amendatory acts are L. 1904, chap. 205, amending 
 § 31, sub. c; chap. 348, amending § 10; and chap. 485, amending 
 § 24. These went into effect April 4, April 16, and April 28, 1904, 
 respectively. 
 
 The most recent amendatory acts are L. 1905, chap. 104, amend- 
 ing § 24, sub. 1; chap. 677, amending § 17, subs. 5 and 8, and 
 § 24, sub. 2; chap. 678, repealing sub. 3a of § 11; chap. 679 amend- 
 ing § 2; chap. 680 amending §§ 16, 2.3, 2S, 34 and 36; and chap. 
 698, which added § 31b. These acts went into effect June 1, 1905, 
 except chap. 104 and chap. 698 which became laws March 30, and 
 June 3, 1905, respectively. 
 
viii Statutes. 
 
 SUPPLEMENTAEY ACTS. 
 
 Among the legislative acts supplemental to the Liquor Tax Law- 
 are: 
 
 Laws of 1806, chapter 900, authorizing the sale of ale and beer 
 upon the premises of the New York lr>tate Holdiers and Sailors' 
 Home of Bath, N. Y.. and providing for the expenditure of the net 
 proceeds therefrom. 
 
 Laws of 1897, chapter 83, providing for the audit and payment, 
 toy cities, of moneys due by reason of the termination of licenses 
 on June thirtieth, eighteen hundred and ninety-six. 
 
 Laws of 1897, chapter 442, relating to the assessment of excise 
 taxes in the several portions of territory consolidated to form the 
 city of Greater New York. 
 
 Laws of 1897, chapter 742, authorizing the State Commissioner 
 of Excise to treat that portion of the city of Rome not included 
 within the corporation tax district limits of .said city as a separate 
 town. 
 
 La^\ s of 1897, chapter 775, authorizing the village of Stamford, 
 Delaware county, to vote upon questions specified in section six 
 teen of chapter one hundred and twelve of the laws of eighteen 
 hundred and ninety-six. 
 
 Laws of 1898, chapter 497, to amend chapter four hundred and 
 thirty nine of the laws of eighteen hundred and ninety- 
 seven, entitled "An act to provide for the holding of annual town 
 meetings and elections in tlie towns in the counties of Rockland. 
 Orange and Sullivan." 
 
 Laws of 1903, chapter i'tS, authorizing the electors of the town 
 of Newfane, Niagara county, to vote upon the local option ques- 
 tions specified in section 16 of the Liquor Tax Law, as restricted 
 to the limits of the hamlet known as Olcott, situate in said 
 town. 
 
 Laws of 1903, chapter .514, amending the Greater New York 
 Charter relating to the sale of liquors in Wallabout Market, 
 Borough of Brooklyn. 
 
 Laws of 1905, chapter 697, providing for the inspection of hotels 
 and the revocation of liquor tax certificates unlawfully obtained 
 therefor. 
 
EXPLANATORY NOTE. 
 
 It should be borne in mind that many of the decisions relating 
 to the Liquor Tax Law contained in this publication are not now 
 authoritative. The Legislature has amended thirty sections of 
 the original statute (see vol. 1, page vii), and the appellate 
 courts have explained, modified, limited, disapproved and re- 
 versed decisions not in harmony with prevailing judicial opinion. 
 
 An examination of the table of cases will show how any par- 
 ticular decision may affect, or be affected by other decisions in 
 the same case. An examination of the cases cited under any 
 particular decision will also show how such decision may have 
 been considered in such other cases. 
 
 The excise cases decided prior to the enactment of the Liquor 
 Tax Law will seldom now be found directly in point, but many 
 of the decisions therein bear historically and argumentatively 
 upon questions of construction and practice under the present 
 Liquor Tax Law. Pertinent propositions and phrases have been 
 emphasized or pointed out rather than an accurate syllabus of 
 each decision attempted. 
 
 For arrangement of decisions under the Liquor Tax Law by 
 subjects, see third, fourth and fifth editions of the Liquor Tax 
 Law, annotated, as published by the State Commissioner of 
 Excise. 
 
 W. E. S. 
 
TABLE OF CASES 
 
 REPORTED IN THIS VOLUME WITH CITATIONS. 
 
 PAGE. 
 
 Anchor Brewing Co. v. Burns, 32 App. Div. 272 379 
 
 Cited, 
 
 Nlles V. Mathusa, lu^ N. Y. 546 
 
 Augner v. Mayor, 14 App. Div. 461 137 
 
 Baker v. Bucklin, 22 Misc. 560 278 
 
 [affirmed, 43 App. Div. 336) 
 
 Balogh V. Lyman, 6 App. Div. 271 56 
 
 Ging V. Sherry, unreported 228 
 
 (reversed, 32 App. Div. 354) 
 
 Ging V. Sherry, 32 App. Div. 354 382 
 
 [reversing unreported decision) 
 
 Gottschalk v. Schock, 36 App. Div. 638 445 
 
 Herman v. Goodson, 18 Misc. 604 105 
 
 Cited, 
 Nne3 V. Mathusa, 19 Misc. 97 
 
 Billiard v. Giese, unreported 229 
 
 [reversed, 25 App. Div. 222; affirmed, 155 N. Y. 702) 
 
 Billiard v. Giese, 25 App. Div. 222 273 
 
 [reversing unreported decision; affirmed, 155 N. Y. 702) 
 Cited, 
 Frank v. Forgotson, 30 Misc. 816 
 In re Lyman v. Texter, 59 App. Div. 217 
 Peo. ex rel. Laughran v. Plynn, 48 Misc. 159 
 
 Billiard, v. Giese, 155 N. Y. 702 365 
 
 (affirming 'in App. Div. 222) 
 
 Koehler v. Flebbe, 21 App. Div. 210 214 
 
 Cited, 
 Albany Brewing Co. v. Barckley, 42 App. Div. 335 
 Niles V. Mattiusa, 162 N. Y. 546 
 Peo. ex rel. Miller v. Lyman, 27 App. Div. 527 
 
 Kresser v. Lyman, 74 Fed. Eop. 765 66 
 
 Lyman v. Broadway Garden Botel and Cafe Co. N. Y. L. J. May 6, 1898. 340 
 (reversed, 33 App. Div. 130) 
 
 Lyman v. Broadway Garden Hotel and Cafe Co. 33 App. Div. 130 385 
 
 (reversing N. Y. L. J. May 6, 1898) 
 
 Lyman v. Corey, 28 App. Div. 623 315 
 
 Lyman v. Gramercy Club, 28 App. Div. 30 309 
 
 Cited, 
 Lyman v. Matty, 35 App. Div. 227 
 Culllnan v. Burkard, 93 App. Div. 33 
 
xii Tablk of f'A.sEs. 
 
 PAGE. 
 
 Lyman v. McGreivey, 48 N. Y. ISupii. 1035 225 
 
 (affirmed, 25 App. Div. 68; affirmed, 159 N. Y. 561) 
 
 Lyman v. McGreivey, 25 App. Div. 68 268 
 
 (affirming 48 N. Y. Supp. 1035; affirmid, 150 X. Y. 561) 
 Oited, 
 In re McGreivey v. Grippin, 37 App. Div. 66 
 
 Lyman v. Matty, 35 App. Div. 227 438 
 
 Lyman v. Plymouth Social Club, N. Y. L. J. .June 1898 365 
 
 Lyman v. Young Men's Cosmopolitan Club, N. Y. L. J. December 24, ISftS 410 
 (reversed, 38 App. Div. 220) 
 
 Lyman v. Zimbrich, unreported 441 
 
 McNeeley v. Welz, 20 App. 1 liv. 5(l(i 211 
 
 (affiniird, 166 X. Y. 124) 
 
 Matter of Aldous v. Goodwin, unreported 85 
 
 Matter of Bradley v. Hall, 22 Misc. 301 256 
 
 Oited, 
 In re Lyman v. Erie County Athletic Club, 46 App. Div. 387 
 Peo. ex rel. Lawton v. Lyman, 33 Misc. 243 
 
 Matter of Bridge v. Mohrmann, 25 ilisc. 213 403 
 
 (affirmed, 36 App. Div. 533) 
 Cited, 
 In re Auerbach v. .Tohannsen, 31 Misc. 44 
 In re Klevesahl v. Perry, 30 Misc. 361 
 In re Loper v. Slattery, 53 App. Div. 576 
 In re Lyman v. Erie County Atliletic Club. 4(; App. Div. 387 
 In re Wood. v. Victory. March 1899, unreported 
 
 Matter of Bridge v. Mohrmann, 36 App. Div. 533 444 
 
 (affirminfi 25 Misc. 213) 
 Cited, 
 In re Cullinan v. Camphpll, 39 Misc. 647 
 In re McMonagle v. Wainwright, 41 Misc. 412 
 
 Matter of Harder v. McNamee, univported 165 
 
 Matter of Holden v. McCusker, 23 Misc. 446 331 
 
 Cited, 
 In re McCusker v. McCusker, 47 App. Div. Ill 
 
 Matter of Hyde v. McAllister, iinreported 196 
 
 Matter of Jenny v. Manzer, 19 Misc. 244 123 
 
 (affirmed. 19 App. Div. 627) 
 Cited, 
 Niles v. Mathusa, 19 Misc. 96 
 
 Matter of Jenny v. Manzer, 19 App. Div. 627 190 
 
 (affirm iiig 19 Misc. 244) 
 Cited, 
 Albany Brewing Co. v. Barckley. 42 App. Div. 3:'.5 
 
 Matter of Johnson v. Mayle, 18 Jlisc. 498 96 
 
 Cited, 
 In re Tonatio v. Deperino, 49 App. Div. 84 
 
 Matter of Johnston v. Fogarty, unreported 167 
 
 Matter of Keene v. Toole, unreported 79 
 
Table op Cases. xiii 
 
 PAGE. 
 
 Matter of Livingston v. Shady, unreported 227 
 
 (affirmed, 24 App. Div. 51) 
 
 Matter of Livingston v. Shady, 24 App. Div. 51 233 
 
 (affirming Unreported decision) 
 Cited, 
 
 In re Lyman v. Erie County Athletic Club, 46 App. Div. 387 
 In re Lyman v. Gramercy Club N. Y. L. J. January 1898 
 In re Lyman v. Texter, 59 App. Div. 217 
 In re Cullinan v. Byrne, N. Y. L. J. March 1902 
 
 Matter of Lyman v. Belden Club, 33 App. Div. 640 399 
 
 Matter of Lyman v. Dieffenbacker, 25 Misc. 638 415 
 
 Cited, 
 
 In re Lyman v. Erie County Athletic Club, 46 App. Div. 387 
 
 Matter of Lyman v. Fuhrman, N. Y. L. J. August 1, 1898 390 
 
 (affirmed, 34 App. Div. 389) 
 
 Matter of Lyman v. Fuhrman, 34 App. Div. 389 400 
 
 (affirming N. Y. L. J. August 1, 1898) 
 Cited, 
 In re Kessler v. Cashin, 28 Misc. 336 
 In re Lewis v. Pilchen. 26 Misc. 532 
 In re Loper v. Slattery, 53 App. Div. 576 
 In re Klevesahl v. Perry, 30 Misc. 361 
 
 Matter of Lyman v. Garrison, 24 Misc. 552 391 
 
 Cited, 
 In re Patterson v. Byrne, 43 Misc. 502 
 
 Matter of Lyman v. Gillett, 23 Misc. 710 366 
 
 Matter of Lyman v. Gramercy Club, N. Y. L. J. January 20, 1898 254 
 
 (affirmed, 28 App. Div. 209) 
 Cited, 
 In re Lyman v. Plymouth Social Club, N. Y. L. J. January 1898 
 
 Matter of Lyman v. Gramercy Club, 28 App. Div. 209 329 
 
 (affirming N. Y. L. J. January 20, 1898) 
 Cited, 
 In re Cullinan v. Jacobs, 45 Misc. 498 
 Peo. ex rel. Belden Club v. Hilllard, 28 App. Div. 140 
 
 Matter of Lyman v. Korndorfer, 60 N. Y. Supp. 76 255 
 
 Matter of Lyman v. Korndorfer, 29 App. Div. 390 346 
 
 Cited, 
 In re Lyman v. Erie County Athletic Club, 46 App. Div. 387 
 
 Matter of Lyman v. Malcolm Brewing Co. unreported 409 
 
 (affirmed, 40 App. Div. 46; affirmed, 160 N. Y. 96; reargued, 161 N. Y. 119) 
 Matter of Lyman v. Plymouth Social Club, N. Y. L. J. January 20, 1898. . 255 
 Matter of Lyman v. Shenandoah' Social Club, N. Y. L. J. De<*inber 1897. 251 
 Matter of Lyman v. True Friends Social and Literary Circle, N. Y. L. J. 
 
 December 8, 1897 248 
 
 Cited, 
 In re Lyman v. Shenandoah Social Club, N. Y. L. J. December 1897 
 
 Matter of Lyman v. Young Men's Cosmopolitan Club, N. Y. L. J. June 
 
 20, 1897 I'^O 
 
 Matter of Lyman v. Young Men's Cosmopolitan Club, N. Y. L. J. Decern- 
 
xiv Table of Cases. 
 
 PAGE. 
 
 ber 13, 1897 252 
 
 {reversed, 28 App. Div. 127) 
 Matter of Lyman v. Young Men's Cosmopolitan Club, 28 App. Div. 127 . . 318 
 (reversing N. Y. L. J. December 13, 1897) 
 Cited, 
 In re Lyman v. Monahan, 28 Misc. 408 
 People V. Clark, 61 App. Div. 500 
 In re Schuyler v. Rorphuro, 63 App. Div. 206 
 
 Matter of MacVicker v. Riley, 21 Misc. 383 220 
 
 Matter of Michell v. Flynn, unreported 118 
 
 Matter of Michell v. Rother, unreported 118 
 
 Matter of Moser v. Schieb, IG App. Div. 379 164 
 
 Cited, 
 
 In re Lyman v. Maloney, 28 Misc. 385 
 
 Matter of Nobles v. Young, 24 App. Div. 632 247 
 
 Matter of Place v. Matty, 27 App. Div. 561 299 
 
 {affirmed, 156 N. Y. 691) 
 Cited, 
 
 In re Haight v. Parsell, 59 App. Div. 626 
 
 In re Hilliard v. Kissel, N. Y. L. J. June 1899 
 
 In re Lyman v. Lazarowitz, N. Y. L. J. June 1899 
 
 In re Lyman v. Erie County Atliletic Club, 46 App. Div. 387 
 
 In re McCusker v. McCusker, 47 App.' Div. Ill 
 
 Matter of Place v. Matty, 156 N. Y. 691 379 
 
 {affirming 27 App. Div. 561) 
 
 Matter of Ritchie v. Samuely, 18 Jlisc. 341 7] 
 
 Cited, 
 In re Bridge v. Mohrman, 25 Misc. 213 ;' 36 App. Div. 533 
 In re Klevesahl v. Ferry, 30 Misc. 361 
 Peo. ex rel. Bagley v. Hamilton, 25 App. Div. 428 
 Peo. ex rel. Sweeney v. Lammerts, 18 Misc. 343 
 
 Matter of Ruland v. Considine, 21 Misc. 504 223 
 
 Cited, 
 In re Bridge v. Mohrman, 36 App. Div, 533 ; 25 Misc. 213 
 In re Rasquin v. Hennln, 37 Misc. 695 
 In re McMonagle v. Wainwright, 41 Misc. 412 
 
 Matter of Russell v. Noonan, unreported 1D3 
 
 Matter of Salisbury v. Acton, 19 Misc. 340 : 128 
 
 Matter of Sherry v. Van Ausdall, 25 Misc. 361 , ^ 407 
 
 Matter of Smith v. Merrill, unreported 136 
 
 Matter of Steenburgh v. Grippin, 24 Misc. 1 . : 370 
 
 Cited, , . 
 
 In re McGreivey v. Grippin, 37 App. Div. 66 - 
 
 Matter of Wicker v. Underbill, 17 Misc. 19. ; 43 
 
 Matter of Wilber v. Welling, unreported 53 
 
 Cited, '- 
 
 Peo. ex rel. Smith v. Foster, 27 Misc. 576 
 
 Matter of Zinzow v. Schmidt, 18 Misc. 653. 106 
 
 Cited, 
 In re Holden v. McCusker, 23 Misc. 446 
 In re Lyman v. Korndorfer, 29 App. Div. 390 
 
Table op Cases. xv 
 
 In re Lyman v. Lazarowitz, N. Y. L. J. June 1899 
 
 In re Lyman v. Monahan, 28 Misc. 40S 
 
 In re Place v. Matty, 27 App. Div. 561 
 
 Peo. ex rel. Bagley v. Hamilton, 25 App. Div. 428 
 
 Niles V. Mathusa, 19 Misc. 96 121 
 
 {affirmed, 20 App. Div. 483; affirmed, 162 N. Y. 546) 
 
 Niles V. Mathusa, 20 App. Div. 483 205 
 
 (affirmhtg 19 Misc. 96; affirmed, 162 N. Y. 546) 
 
 Cited, 
 Albany Brewing Co. v. Barckley, 42 App. Div. 335 
 Anchor Brewing Co. v. Burns, 32 App. Div. 272 
 Prank v. Forgotson, 31 Misc. 726 
 Hilliard v. Giese, 25 App. Div. 222 
 In re Lyman v. Maloney, 53 App. Div. 330 
 Peo. ex rel. Miller v. Lyman, 27 App. Div. 527 
 
 People V. Boudouin, 19 Misc. 665 152 
 
 People v. Brede, unreported 174 
 
 People V. Critelli, 35 App. Div. 632 440 
 
 People v. Crotty, 22 App. Div. 77 230 
 
 Cited, 
 
 People V. Haren, 35 Misc. 595 
 
 CuUinan v. Criterion Club, 39 Misc. 271 
 
 People V. Clark, 61 App. Div. 500 
 
 Cullinan v. O'Connor, 100 App. Div. 144 
 
 People V. Dippold, 30 App. Div. 02 349 
 
 People v. Dooling, unreported 17 
 
 People V. Durante, 19 App. Div. 292 193 
 
 Cited, 
 
 Frank v. Forgotson, 31 Misc. 726 
 
 Hilliard v. Giese, 25 App. Div. 222 
 
 In re Livingston v. Shady, 24 App. Div. 51 
 
 In re Lyman v. Erie County Athletic Club, 46 App. Div. 387 
 
 Niles V. Mathusa, 162 N. Y. 546 
 
 Peo. ex rel. Miller v. Lyman, 27 App. Div. 527 
 
 People V. Ferranto, unreported 411 
 
 People V. Huffman, 24 App. Div. 233 234 
 
 Cited, 
 People V. Andrus, 74 App. Div. 547 
 People V. Haren, 35 Misc. 593 
 
 People V. Koenig, 9 App. Div. 436 93 
 
 Cited, 
 
 People V. Markowitz, N. Y. L. J., June 30 1903 
 
 People V. Kurminsky, 23 Misc. 504 265 
 
 People V. Levy, 24 Misc. 469 387 
 
 Cited, 
 
 People V. Bamett, N. Y. L. J. April 1901 
 
 People V. Wade, 26 Misc. 585 
 
 People V. Comyn, 36 Misc. 135 
 
 People V. Satchwell, 61 App. Div. 312 
 
 People V. Haren, 35 Misc. 593 
 
 Peo. ex reL Sweet v. Lyman, 30 App. Div. 135 352 
 
 Cited, 
 People V. Stewart, N. Y. L. J. July 1900 
 
xvi Table of Cases. 
 
 PAOE. 
 
 People V. Mulkins, 25 Misc. 599 394 
 
 People V. Schmidt, 19 Misc. 458 134 
 
 Cited, 
 People V. Haren, 35 Misc. 593 
 
 People V. Seaman, unreported 335 
 
 (see 29 App. Div. 624) 
 
 People V. Seaman, 29 App. Div. 024 344 
 
 {dismissing appeal from unreported decision) 
 
 People V. Smith, xmreported 342 
 
 (affirmed, 35 App. Div. 624) 
 
 People V. Smith, 35 App. Div. 024 439 
 
 {affirming unreported decision) 
 
 People V. Stock, unreported 254 
 
 {affirmed, 26 App. Div. 564; affirmed, 157 N. Y. 681) 
 
 People V. Stock, 26 App. Div. 564 287 
 
 (affirming unreported decision; affirmed, 157 N. Y. 681) 
 Cited, 
 Peo. ex rel. Langworthy v. Hazard. 23 Misc. 477 
 People V. Shaver, 37 App. Div. 21 
 
 People V. Stock, 157 N. Y. 681 398 
 
 (affirming 26 App. Div. 564) 
 Cited, 
 People v. Crltelll, ?.r, App. Div. 632 
 
 People V. Weir, unreported 101 
 
 People V. Wolcott, unreported 119 
 
 People V. Wolf, 24 Misc. 94 316 
 
 Cited, 
 
 People V. "Wade, 26 Misc. 585 
 
 People V. Barnett, N. Y. L. J. April 1901 
 
 Peo. ex rel. Action v. Corkhill, unreported 87 
 
 Cited, 
 Peo. ex rel. Smith v. Foster, 27 Misc. 576 
 
 Peo. ex rel. Anderson v. Hoag, unreported 86 
 
 (affirmed, 11 App. Div. 74) 
 
 Peo. ex rel. Anderson v. Hoag, 11 App. Div. 74 114 
 
 {affirming unreported decision) 
 (Jited, 
 In re Adriance v. Ramage, 59 App. Div. 440 
 In re Lyman v. Gillett, 23 Misc. 710 
 Peo. ex rel. Belden Club v. Hilliard, 28 App. Dtv. 140 
 
 Peo. ex rel. Bagley v. Hamilton, 21 Misc. 375 217 
 
 (reversed, 25 App. Div. 428) 
 
 Peo. ex rel. Bagley v. Hamilton, 25 App. Div. 428 282 
 
 (reversing 21 Misc. 375) 
 Cited, 
 In re Kessler v. Cashln, 28 Misc. 336 
 In re Klevesahl v. Perry, 30 Misc. 361 
 In re Lewis v. Pilchen, 26 Misc, 532 
 In re Loper v. Slattery, 53 App. Div. 576 
 In re Lyman v. Fuhrman, 34 Misc. 389 
 In re Lyman v. Korndorf, 29 App. Div. 390 
 
Table of Cases. xvii 
 
 PAGE. 
 
 Peo. ex rel. Bassett v. Warden, 17 ilise. 1 10 
 
 (affirmed, 6 App. Div. 520) 
 Cited, 
 In re Lyman v. Jehle, N. Y. L. J. May 1900 
 
 Peo. ex rel. Bassett v. Warden, (i App. Div. .520 62 
 
 {ajfirining 17 Misc. 1) 
 
 Peo. ex rel. Bedell v. Kinney, unreported 186 
 
 (reversed, 24 App. Div. 300) 
 
 Peo. ex rel. Bedell v. Kinney, 24 App. Div. 309 242 
 
 (reversing unreported decision) 
 
 Cited, 
 People V. Stock, 26 App. Div. 564 
 Peo. ex rel. Langworthy v. Hazard, 23 Misc. 477 
 
 Peo. ex rel. Belden Club v. Hilliard, .50 N. Y. Supp. 900 317 
 
 (affirmed, 28 App. Div. 140) 
 
 Peo. ex rel. Belden Club v. Hilliard, 28 App. Div. 140 325 
 
 (affirming 50 N. Y. Supp. 909) 
 Cited, 
 In re Adriance v. Ramage, 59 App. Div. 440 
 In re Bridge v. Mohrman, 36 App. Div. 533 ; 25 Misc. 213 
 In re Fall v. Meehan, 26 Misc. 611 
 Peo. ex rel. Leonard v. Hamilton, 27 Misc. 308 
 Born v. Hopper, 48 Misc. 177 " 
 
 Peo. ex rel. Cole v. IngersoU, unreported 199 
 
 Peo. ex rel. Cramer v. Medberry, 17 Jlisc. 8 32 
 
 Cited, 
 Lyman v. McGreivey, 25 App. Div. 68 
 
 Peo. ex rel. Decker v. Parmalee, 22 ilisc. 380 260 
 
 Peo. ex rel. Einsf eld v. Murray, 4 App. Div. 185 1 
 
 (affirmed, 149 X. Y. 367) 
 Cited, 
 People V. Weir, December 1896, unreported 
 
 Peo. ex rel. Einsf eld v. Murray, 149 X. Y. 367 18 
 
 (affirming 4 App. Div. 185) 
 Cited, 
 Augner v. Mayor, 14 App. Div. 461 
 In re Bradley v. Hall, 22 Misc. 301 
 
 In re Lyman v. Erie County Athletic Club, 46 App. Div. 387 
 Kresser v, Lyman. 74 Fed. Rep. 76.!> 
 People v, Durante, i9 App. Div. 292 
 People v. Weir, December 189ii. unreported 
 Peo. ex rel. Lawton v. Lyman, 33 Misc. 21::: 
 People V. Seeley, 105 App. Djv. 152 
 People v. Cox, 106 App. Div. 306 
 Peo. ex rel. Laughran v. Flyun, 48 -Mi.-c, 1.59 
 
 Peo. ex rel. Fisher v. Hasbrouck, 21 Misc. 188 199 
 
 Cited, 
 Peo. ex rel. Smith v. Fo.ster, 27 Misc. 576 
 
 Peo. ex rel. Fuller v. Elles, unieported , 85 
 
 Peo. ex rel. Gray v. Hilliard, X. Y. L. .T., November 30, 1890 99 
 
 2 
 
xviii Tablio of Casks. 
 
 PAGE. 
 
 Peo. ex rel. Hartigan v. Macy, unreported 82 
 
 Cited, 
 Peo. ex rel. Smith v. Poster, 27 Misc. 576 
 
 Peo. ex rel. Holz v. O'Grady, 12 App. Div. 625 117 
 
 Peo. ex rel. Langworthy v. Hazard, 23 Misc. 477 342 
 
 Peo. ex rel. Larkin v. Hull, 23 Misc. 63 292 
 
 Peo. ex rel. Ljrman v. Boone, unreported 336 
 
 Peo. ex rel. Miller v. Lyman, 27 App. Div. 527 296 
 
 (affirmed, 156 N. Y. 407) 
 
 Peo. ex rel. Miller v. Lyman, 150 N. Y. 407 373 
 
 (affirming 27 App. Div. 527) 
 Cited, 
 
 Fraak v. Forgotson, 31 Misc. 726 
 
 In re Lyman v. Fagan, 26 Misc. 300 
 
 In re Lyman v. Texter, 59 App. Div. 217 
 
 In re Michell v. James, 41 App. Div. 271 
 
 McNeeley v. Welz, 166 N. Y. 124 
 
 Lyman v. Clieever^ 31 Misc. 100 
 
 Peo. ex rel. Fallert Brewing Co. v. Lyman, 53 App. Div. 470 
 
 Peo. ex rel. Lawton v. Lyman, 33 Misc. 243 
 
 In re CulUnan v. Luca, 87 App. Div. 50 
 
 Peo. ex rel. Ochs v. HlUiard, 81 App. Div. 72 
 
 In re Cullinan v. Byrne, N. Y. L. J., March 1902 
 
 Knapp V. Scanlin, 36 Misc. 761 
 
 Peo. ex rel. Ochs v. Lyman, 25 Misc. 217 405 
 
 Peo. ex rel. Reusse v. Michell, unreported 136 
 
 Peo. ex rel. Richardson v. Sackett, unreported 51 
 
 Peo. ex rel. Richardson v. Sackett, 17 Misc. 405 46 
 
 Cited, 
 Peo. ex rel. Smith v. Foster, 27 Misc. 576 
 
 Peo. ex rel. Rochester Whist Club v. Hamilton, 17 Misc. 11 35 
 
 Cited, 
 Peo. ex rel. Smith v. Foster, 27 Misc. 576 
 
 Peo. ex rel. Ryan v. Manzer, 18 Misc. 292 89 
 
 Peo. ex rel. Shorten v. Markell, 20 Misc. 149 159 
 
 Peo. ex rel. Sweeney v. Lammerts, 18 Misc. 343 73 
 
 (affirmed, 14 App. Div. 628) 
 Cited, 
 
 In re Bridge v. Mohrmann, 36 App. Div. 533 ; 25 Misc. 213 
 
 In re Kessler v. Cashin. 28 Misc. 336 
 
 In re Klevesahl v. Perry, 30 Misc. 361 
 
 In re Loper v. Slattery, 53 App. Div. 576 
 
 In re Place v. Matty, 27 App. Div. 561 
 
 Peo. ex rel. Bagley v. Hamilton, 25 App. Div. 428 
 
 In re Patterson v. Byrne, 43 Misc. 502 
 
 Peo. ex rel. Sweeney v. Lammerts, 14 App. Div. 628 146 
 
 (affirming 18 Misc. 343) 
 
 Peo. ex rel. Sweet v. Lyman, 20 Misc. 80 154 
 
 (affirmed, 30 App. Div. 135; affirmed, 157 N. Y. 368) 
 
 Peo. ex rel. Sweet v. Lyman, 30 App. Div. 135 352 
 
 (affirming 20 Misc. 80; affirmed, 157 N. Y. 368) 
 
Table of Cases. xix 
 
 PAGB. 
 
 Peo. ex rel. Sweet v. Lyman, 157 N. Y. 368 416 
 
 {affirming 30 App. Div. 135; affirming 20 Misc. 80) 
 
 Peo. ex rel. Thomas v. Sackett, 17 Misc. 406 48 
 
 {reversed, 15 App. Div. 290) 
 Cited, 
 Peo. ex rel. Fuller v. EUes, August 1896, unreported 
 
 Peo. ex rel. Thomas v. Sackett, 15 App. Div. 290 146 
 
 {reversing 17 Misc. 406) 
 Cited, 
 Peo. ex rel. Smith v. Foster, 27 Misc. 576 
 
 Peo. ex rel. Watkins v. Bishop, 21 App. Div. 634 216 
 
 Wilking V. Richter, 25 Misc. 735 442 
 
DIGEST OF DECISIONS 
 
 AND DICTA IN CASES ARISING UNDER EXCISE lAWS IN FORCE 
 
 PRIOR TO THE LIQUOR TAX LAW, ALPHABETICALLY 
 
 ARRANGED, WITH CITATIONS. 
 
 Aldrich v. Sager, 9 Hun, 537 
 
 Civil damage suit by husband for loss of wife's services and expenses 
 of medical attendance occasioned by drunken son-in-law's reckless driving 
 and upsetting carriage, from which she was thrown and injured. 
 
 Alger V. Weston, 14 Johnson, 230 
 
 Defendant offered in justification of alleged sales without license, a 
 license issued to another for premises which it was proved had been 
 occupied by former licensee who leased them to defendant with per- 
 mission to sell under his license. Held, he could not acquire any right 
 to sell liquors under it. 
 Cited, 
 Metropolitan Board of Excise v. Barrie, 31 N. Y. 657 
 
 Amerman v. Kail, 34 Hun, 126 
 
 Penalty action, although for a penalty, is a civil and not a criminal 
 action and for its purpose a sale by an agent in the shop of his prin- 
 cipal or by a servant in the shop of his master is prima facie a sale 
 by the principal or master. 
 Cited, 
 Austin V. Carswell, 67 Hun, 579 
 
 Andrews v. Harrington, 19 Barb. 343 
 
 Action for penalties under 2 R. S. 481, sec. 7, selling without license. 
 Judgment for $25 upon one established violation. Held not reversible 
 error to admit incompetent evidence of another violation. 
 Cited, 
 Prussia v. Guenther, 16 Abb. N. C. 230 
 
 Arhart v. Stark, 6 Misc. 570 
 
 Evidence of recovery of civil penalty for keeping house of ill fame 
 not admissible to affect weight of testimony similarly to evidence of 
 conviction — although the fact that the State law characterizes the act 
 or conduct constituting the offense as a misdemeanor and the ordinance 
 characterizes it as disorderly conduct, in no way affects or changes 
 the essential quality of the act or conduct, and in both instances the 
 act or conduct is the same, namely, keeping a house of ill fame. 
 
 Astheimer v. O'Pray, 16 N. Y. Supp. 470, affirmed, 135 N. Y. 631 
 
 Sufficiency of proof that person drank liquors resulting in damages 
 sought to be recovered under Civil Damage Act — where deceased drank 
 at saloon late at night, was asleep on porch early in the morning and 
 
xxii Digest of Diocisions 
 
 drank liquor from a bottle apparently containing whiskey which another 
 witness refused for that reason and drank lager. 
 Austin V. Carswell, 67 Hun, 57'.i 
 
 Plaintiff entitled to a charge that defendant may be liable civilly even 
 though she had already been prosecuted criminally for same offense. 
 But evidence of previous conviction is illegal. 
 
 is principal liable for act of agent committed without knowledge or 
 in violation of instructions? 
 Bacon v. Jacobs, 63 Hun, 51 
 
 Liquor dealer liable for damage resulting from acts of intoxicated 
 person even though such person on account of bitter feeling might have 
 committed the injury had he not been intoxicated. 
 Baker v. Pope, 2 Hun, 556 
 
 Civil Damage Act, L. 1873, held constitutional. Applied to licensed 
 as well as unlicensed persons. Did not forbid sales but attached a 
 liability for certain consequences. "It imposes upon the seller the duty 
 of guarding his conduct so as to produce no mischievous results. He 
 must not use his license to aid the poor in squandering the means neces- 
 sary for the aid and support of families or the education of children. If 
 his abuse of his license leads to such results, the law makes him liable 
 for such damages as ensue. A license is not a contract depriving the 
 Legislature of the right to act." 
 Cited, 
 
 Hayes v. Phelan, 5 Hun, 335 ; 4 Hun, 733 
 
 Dubois V. Miller, 5 Hun, 332 
 
 Jackson v. Brookins, 5 Hun, 530 
 
 Bertholf V. O'Reilly, 8 Hun, 16 
 
 Volans V. Owen, 9 Hun, 658 
 
 Franklin v. Schermerhorn, 8 Hun, 112 
 
 Quain v. Russell, 8 Hun, 319 
 
 Quain v. Russell, 12 Hun, 376 
 
 Beers v. Walhizer, 43 Hun, 254 
 
 Civil Damage Act makes no distinction between cases where wife's loss 
 of means of support ia direct result of intoxication or those in which 
 it is remote result, so liability follows where husband is imprisoned for 
 crime committed as a result of intoxication. If good cause of action 
 is stated against liquor dealer, same is true of landlord. 
 died, 
 Mccarty v. Wells, 51 Hun, 171 
 Bacon V. Jacobs, 63 Hun, 51 
 Bellinger v. Birge, 54 Hun, 511 
 
 Overseer of Poor in whose name a penalty action has been brought may 
 settle it without order of Court, provided, etc. 
 Cited, 
 Olp V. Leddlck, 14 N. Y. Supp. 41 
 Bennet v. Levi, 19 N. Y. Supp. 226 
 
 Having moved for non-suit in civil damage suit solely upon ground 
 that as landlord, defendant had no knowledge that liquor was sold in 
 premises and submitted the other facts in the case to the jury, he can- 
 
 ■ not question their sufficiency on appeal. 
 
 ■ Jury fixes extent of compensatory damages. 
 
Under Former Excise Laws xxiii 
 
 Benson v. Moore, 15 Wend. 260 
 
 An innkeeper though authorized to sell to be drunk on premises, may not 
 sell to be drunk off premises under 1 E. S. 680. 
 Bernstein v. Sweeney, 33 N. Y. Super. 271 
 
 Proprietor of place kept on the European plan, having rooms to rent in 
 connection with restaurant, is the proprietor of a hotel. 
 Bertholf v. O'Reilly, 74 N. Y. 509, affirming 8 Hun, 16 
 L. 1873, ch. 646 — Civil Damage Act, constitutional. 
 
 Though imposing on a landlord liability for damages occasioned by an 
 intoxicated person, where the formei-'s only connection with the injury 
 is that he leased the premises where the liquor causing the intoxication 
 was sold or given away, with the knowledge that intoxicating liquors 
 were to be sold therein, such business being a lawful business and the 
 sale or gift of the liquor in question not being contrary to any restriction 
 upon it. " The object of the law was to prevent the impoverishment 
 of families by reason of intoxication; to prevent the violence and injury 
 resulting from intoxication by making those who caused the intoxication 
 liable for the damages which resulted to others by reason thereof. The 
 tenant may sell, but he must be careful to whom he sells, and never 
 to sell enough to cause intoxication or to add to an intoxication which 
 has been commenced by sales of strong drink by others." Subjecting 
 property specially adapted for use as an inn or hotel to the resulting 
 risks imposed by this act is not the taking of property within the mean- 
 ing of the constitution. 
 
 " Pauperism, vice and crime are the usual concomitants of the unre- 
 strained indulgence of the appetite for strong drink. Impoverishment 
 of families, the imposition of public burdens, insecurity of life and 
 property are consequent upon the prevalence of the great evil of intem- 
 perance." The legislature may not only regulate the traffic in liquors 
 " but it may prohibit it." " It may create new offenses, enlarge the scope 
 of civil remedies and fasten responsibility for injuries upon persons 
 against whom the common law gives no remedy." 
 Cited, 
 
 Bacon v. Jacobs, 63 Hun, 51 
 
 People V. Lyon, 27 Hun, 180 
 
 Beers v. "WalWzer, 43 Hun, 254 
 
 Volans V. Owen, 74 N. Y. 527 
 
 Neu T. McKechnie, 95 N. Y. 632 
 
 Reid V. Terwilliger, 42 Hun, 310 
 
 Dudley v. Parker, 132 N. Y. 386 
 
 Peo. ex rel. Binsfeld v. Murray, 4 App. Div. 185 
 
 Bertholf v. O'Reilly, 8 Hun, 16, Uffirmed, 74 N. Y. 509 
 
 Civil damage suit for loss of plaintiff's horse driven to death by his 
 son while intoxicated. The legislature required the owner who alone 
 has the power to lease and select his tenant, to assume the risks of his 
 tenant's acts in the business of selling spirituous liquors, when such 
 tenant caused injury by his sales. 
 
 Blasdelle v. Hewit, 3 Caines Rep. 137 
 
 In a penalty action under Eev. Laws 484, entitled "An act to lay a 
 
xxiv Digest of Decisions 
 
 duty on strong liquors and for regulating inns and taverns" which 
 contains a proviso concerning sale of home made wines and cider not 
 to be drunk where sold, the time and place of sale as well as the kind 
 of liquor sold should be pleaded. 
 
 Cited, 
 Bennett v. Hurd, 3 Johns. 438 
 Teel V. Fonda, 4 Johns. 304 
 
 Blatchley v. Moser, 15 Wsni. 215 
 
 Indictment for selling liquors without license no bar to penalty action. 
 " One may be said to be a private remedy, the other a public one for the 
 same offense." 
 
 Cited, 
 People V. Meaklm, 133 N. Y. 225 
 Rollins V. Breed. 54 Hun, 485 
 Peo. ex rej. Meakim v. Eckman, 63 Hun, 209 
 
 Blatz V. Rohrbach, 110 X. Y. 450, nrcrsing 42 Hun, 402 
 
 Failure to recover under Civil Damage Act, L. 1873, ch. 646 because 
 of failure to show intoxication resulted from sales of " beer." The term 
 " beer " in the absence of evidence as to its quality and effect, does not 
 necessarily import an intoxicating beverage, as it includes both intoxi- 
 cating and non-intoxicating liquors. As to strong and spirituous liquors 
 the courts take notice of their intoxicating character and that stands 
 in lieu of evidence. " Hitlierto the courts have not been willing to take 
 notice that lager beer is intoxicating, but have submitted the question 
 when controverted, to the jury, to be determined upon the e\idence." 
 
 " It plainly was not the intention of the legislature to prohibit the sale 
 of numerous kinds of mild drink sold under the name of beer, and I 
 think it may be affirmed that the term, as now used, if it imports any 
 particular l)cverage, is generally understood to refer to lager." 
 
 Cited, 
 Blatz V. Rohrbach, 80 Hun, 170 
 Peo. V. Cox. 106 App. Div. 303 
 
 Matter of Cullinan v. McGovern, 94 N. Y. Supp. 525 
 Matter of Hunter v. CafErey, 34 Misc. 389 
 
 Blatz V. Rohrbach, 42 Hun, 402, rncrscd, 116 N. Y. 450 
 
 Civil damage suit by wife Avhose husband committed suicide while in- 
 toxicated. Defendant held liable without much consideration as to char- 
 acter of the " beer " sold by him. 
 Cited, 
 
 McCarty v. Wells, 51 Hun, 171 
 
 Blatz V. Rohrbach, 60 Hun, 169 
 
 Suicide of intoxicated person who drank Spenk beer, inflicts no liability 
 under Civil Damage Act, unless Spenk beer is proved to have caused the 
 intoxication. 
 
 Board of Commissioners v. Burtis, 103 N. \'. 136, afprming 34 Hun, 624 
 
 Excise Commissioners of city of Auburn held authorized to bring penalty 
 actions under L. 1857, as amended by L. 1873, ch. 820, and L. 1878, 
 
Under Fokmbr Excise Laws xxv 
 
 ch. 109, where office of overseer of poor was abolished but duties of such 
 office performed by Board of Charities and police. 
 
 Cited. 
 
 Standart v. Burtis, 46 Hun, 82 
 
 Peo. ex rel. Meakim v. Eckmau. 63 Hun, 209 
 
 Commissioners of Excise v. Mercliant, 103 N. Y. 146 
 
 Boaid of Commissioners v. Cosiatir, 62 How. 113 
 
 Citizen who brings suit for penalty in name of overseer of poor may 
 be compelled to give security for costs. No hardship, for if action is 
 well founded, he will have no costs to pay. If otherwise, then the un- 
 fortunate defendant who has been harassed by an unwarranted act of 
 a stranger who sets the machineiy of the law against him will be in part 
 reimbursed. 
 Cited, 
 
 Sharp V. Fancher, 29 Hun, 193 
 Board of Commissioners v. Freeoff, 17 Hua\ . Pr. 442 
 
 The term " strong and spirituous liquors " includes " ale and strong 
 beer." 
 
 Cited, 
 
 Board ot Commissioners v. Taylor, 21 N. Y. 173 
 Board of Commissioners v. Keller, 20 How. Pr. 280 
 
 The Married Woman's Act of 1860 did not relieve a husband from liability 
 for penalties incurred without his knowledge or assent by the wife even 
 in the conduct of her own separate saloon business carried on in a part 
 of their residence. 
 Cited, 
 
 Board of Excise Commissioners v. Dougherty, 55 Barb. 332 
 Board of Commissioners v. McGrath, 27 Hun^ 425 
 
 Action by some other person in name of excise board which fails or 
 neglects to bring penalty suit under 2 R. S. (5th ed.) 945, sec. 31. 
 Complainant not required to give security for costs. 
 
 Cited, 
 
 Sharp V. Fancher, 29 Hun, 193 
 Montgomery v. Odell, 73 Hun, 424 
 Board of Commissioners of Excise of Tompkins Co. v. Taylor, 21 N. Y. 173 
 " Strong beer " is within the meaning of term " strong and spirituous 
 liquors " in L. 1857, eh. 628. Semble, " any liquor is within the statute, 
 whether fermented or distilled, of which the human stomach can contain 
 enough to produce intoxication." 
 
 Courts will take judicial notice of the evils of the liq lor traffic and 
 the efforts to lessen them by regulating the business. 
 
 Cited, 
 People V. Zeiger, 6 Park. 355 
 Overseers v. McCann, 20 Weekly Dig. 114 
 Schwab V. Peo. 4 Hun, 520 
 Village of Deposit v. Vail, 5 Hun, 310 
 Prussia v. Guenther, 16 Abb. N. C. 230 
 Rau V. Peo. 63 N. Y. 277 
 Blatz V. Rohrbach, 116 N. Y. 450 
 People V. Schewe, 29 Hun, 122 
 Ripley V. McCann, 34 Hun, 112 
 Kllllp V. McKay, 13 N. Y. St. Rep. 5 
 
xxvi Digest of Decisions 
 
 Board of Excise v. Curley, 69 N. Y. 608 
 
 When a section of a statute has been amended so as to read " as follows," 
 the amendment is substituted for the original section; so that when 
 Excise Law of 1874 was passed the Law of 1857 in force was the original 
 act as amended to date. 
 Board of Excise v. Garlinghouse, 45 N. y. 249 
 
 County Commissioners of L. 1857 superseded by Town Commissioners of 
 L. 1870; penalty actions maintainable by latter only. 
 Cited, 
 People V. Smith, 69 N. T. 175 
 Peo. ex rel. HougMou v. Andrews, 42 Hun, 614 
 Bellinger v. Birge, 54 Hun, 511 
 
 Board of Excise Commissioners v. Dougherty, 55 Barb. 332 
 
 Penalty action under L. 1857 for sales without license against husband 
 of woman owning place of sale. Defense that he was acting as her agent 
 without proof that she held license, held untenable. "A license is not 
 only to the person to sell, &e., but is also a license to sell liquor at a 
 particular place. A license so issued would protect the agent or clerk 
 of the licensee, but a person selling as the agent or clerk of a person 
 or at a place not licensed, cannot obtain immunity by claiming that he 
 acted for another party." 
 Cited, 
 Prussia V. Guenther, 16 Abb. N. C. 230 
 
 Board of Excise v. Sockrider, 35 N. Y. 154 
 
 There is no authority cited to sustain the proposition that the Board 
 of Excise can confer upon an agent or attorney the right to determine 
 what suits shall be brought against individuals for violations of the 
 Excise Law. That duty is by law east upon the board of commissioners — • 
 they are entrusted with an office which requires discretion and are clothed 
 with a trust, which is to be exercised for the public good. 
 
 Brookmire v. Monaghan, 15 Hun, 16 
 
 Civil damage suit by wife for injury to means of support — resulting 
 from death of husband through intoxication. Held that such an action 
 was not maintainable. 
 Cited, 
 Mead V. Stratton, 87 N. Y. 493 
 
 Cady V. McDowell, 1 Lans. 484 
 
 A boardilig house is not in common parlance or in legal meaning every 
 private house where one or more boarders are kept occasionally only 
 and upon special consideration. 
 
 Campbell v. Schlisinger, 48 Hun, 428 
 
 Action for civil damages. If barkeeper sells liquor even without 
 knowledge of employer, it is the employer's act because the barkeeper 
 is within the scope of his authority. But not so if he gives the liquor 
 away, even though the statute prohibits it, because it is not within the 
 scope of an agent's authority to give his employer's property away. 
 
 Knowledge of employer that bartender may be helping himself at the 
 bar is not sufficient to charge him with the offense of giving liquor to a 
 posted person. 
 
Under Former Excise Laws xxvii 
 
 Carpenter v. Taylor, 1 Hilt. 193 
 
 Person entering restaurant for a meal is not a guest of the proprietor 
 even though latter may conduct a hotel elsewhere on premises. 
 Cited, 
 Kelley v. Excise Commissioners, 54 How. Pr. 327- 
 Kopper V. Willis, 9 Daly, 460 
 Korn V. Schedler, 11 Daly, 234 
 Cochrane v. Schryver, 12 Daly, 174 
 
 Cercle Francais de I'Harmonie v. French, 44 Hun, 123 
 
 When police authorities may invade private quarters of social club or 
 a public place temporarily under its management. 
 (Jited, 
 Kenny v. Martin, 11 Misc. 651 
 
 City of Brooklyn v. Toynbee, 31 Barb. 282 
 
 The municipal ordinance declared to be void as to innkeepers licensed 
 under general statutes in Wood v. City of Brooklyn, 14 Barb. 425, is 
 not void in toto, but enforceable against hotel keepers without license. 
 But, two penalties are not recoverable for the same act, one for the 
 sale of liquor and ano'-.her for exposing it for sale — where the latter is 
 but an incident to the former. 
 
 Cited, 
 Arliart v. Stark, 6 Misc. 579 
 
 City of Buffalo v. Smith, 8 Misc. 348 
 
 A song or performance upon a musical instrument by the proprietor 
 of a saloon, not intended to draw or secure an audience from the public, 
 is not a violation of any law. 
 
 Burden of showing that defendant had not paid a license for per- 
 mitting a concert was on the plaintiff. 
 
 Cochrane v. Schryver, 12 Daly, 174 
 
 Where lessee of building sublets basement for restaurant and himself 
 lets rooms upstairs, he is not an innkeeper. 
 
 Commissioners of Excise v. Glennon, 21 Hun, 244 
 
 The Commissioners of Charities of the City of Yonkers upon whom the 
 charter conferred all powers given generally to overseers of poor in 
 towns, instead of Board of Excise of city, should bring penalty actions. 
 
 Commissioners of Excise v. Merchant, 34 Hun, 19, affirmed, 103 N. Y. 143 
 
 Judge charged that when liquor was seen to be drunk on premises of 
 liquor dealer, it was prima facie evidence of sale with intent that it 
 should be so drunk; also that calling for liquor and drinking same 
 constituted prima facie evidence of a sale. 
 
 Held, that where a person enters a tavern or saloon and calls for 
 whiskey or any other beverage and it is set out to him by the proprietor, 
 and he drinks it, nothing more being said, the law implies a sale. 
 
 Commissioners v. Osterhoudt, 23 Hun, 66 
 
 Commissioners of almshouse held to have the power of overseers of 
 poor to maintain penalty actions under L. 1857, ch. 628, sec. 14, rather 
 than local board of excise. Also held that a license issued in August 
 did not authorize or have a retroactive effect and legalize traffic in 
 the month previous. Also that a license issued in the preceding August 
 
Digest op Dkoisions 
 
 expired on May first by its terms and aiforded no protection even though 
 applicant was entitled to have a license run for a year. 
 
 Commissioners of Excise v. Palmer, 3 N. Y. St. Rep. 200 
 
 Married woman engaged in separate saloon bu.siness is liable for penalty. 
 Her husband is not liable and is not a proper party to action therefor. 
 
 Commissioners of Excise v. Purdy, 13 Abb. Pr. 434, reversing 22 How. Pr. 312 
 Defendant's remedy against the commencement of penalty actions by 
 private parties without authority, is not a motion to dismiss complaint, 
 but is a motion for security for costs. 
 
 Commissioners of Excise v. Purdy, 22 How. Pr. 312, rrccrser], l;j Abb. Pr. 434 
 The condition that an action for penalties shall be brought by private 
 parties in the name of excise commissioners only when the latter have 
 refused to institute the same on a complaint accompanied liy reasonable 
 proof of the violations charged, " is imposed not only for the safety of 
 the commissioners and the public, but also to prevent citizens from 
 being vexed by informers and speculators without probable cause." 
 Cited, 
 Hess V. Appell, 02 How. Pr. 314 
 
 Commissioners of Excise of Onondaga v. Backus, 2!i How. Pr. 33 
 
 Where the board of excise pays informers to obtain evidence against 
 violators of law, the board is not inirticrps eriminis with the person 
 violating the statute. 
 Cited, 
 Lyman v. Oussani, 33 Misc. 409 
 
 Comstock V. Hopkins, til linn, 189 
 
 Civil Damage Act read with Excise Law imposes a condition on which a 
 license to sell liquor is grantetl, viz: The condition of liability in dam- 
 ages for injuries to others resulting from such sale. It is true that 
 the unlicensed dealer is a wrongdoer both cixilly and criminally, but the 
 Civil Damage Law applies with equal force to the licensed as to the 
 unlicensed dealer, and therefore it cannot be said that the liability 
 imposed by it is the liability of wrongdoers. 
 
 Release of one joint defendant releases all, not because they are wrong- 
 doers, but because the statute imposes an undivided liability and there 
 can be no apportionment of damages. 
 Cited, 
 Reinhardt v. Fritzsche, 69 Hun, 565 
 
 Conklin v. Tice, 1 N. V. Supp. SO.i, uffirtiied, 127 N. Y. tj70 
 
 Whenever action for civil damages will lie against liquor dealer it will 
 lie against landlord provided he leased premises for sale of liquors or 
 knew of such intended sale therein. 
 
 County of Allegany v. Town of Wellsville, 90 Hun, 2.! 
 
 Distribution of excise money to towns under L. 1892, ch. 401, except as 
 " otherwise provided by a special or local law," not subject to L. 1890, 
 ch. 569, and L. 1828, ch. 1.'55, relative to towns where town poor are a 
 county charge. 
 
 Cromwell v. Stephens, 3 Abb. Pr. (N. S.) 26 
 Inn, hotel and boarding-house defined. 
 
Under Former Excise Laws xxix 
 
 Cronin v. Gundy, 16 Hun, 520 
 
 Penalty action for selling liquor without a license. Defendant held not 
 to be protected by license issued in part by one who was elected to the 
 office of excise commissioner to fill a supposed vacancy on account of 
 a previously elected commissioner's failure to have his bond approved 
 by supervisor within fifteen days after election. Forfeiture of the 
 office not occasioned ipso facto by failure to do so — only after legal pro- 
 ceedings declaring it. 
 
 Cited, 
 Horton v. Parsons, 37 Hun, 42 
 People V. McDowell, 70 Hun, 1 
 
 Cronin v. Stoddard, 97 N. Y. 271 
 
 A license issued by one of three regularly elected excise commissioners and 
 by one who succeeded another such commissioner, who had neglected to 
 give a bond, afforded no protection and was no defense to a penalty action 
 for sale without license, because the failure to file a bond did not create 
 a vacancy in the office — only cause for removal which was not acted 
 upon. 
 
 Cited, 
 People V. McDowell, 70 Hun, 1 
 Peo. ex rel. Brooks v. Watts, 73 Hun, 404 
 
 Cuniff v. Beecher, 84 Hun, 137 
 
 Magistrate before whom a person has been found guilty of disorderly 
 conduct (intoxicated) under L. 1892, ch. 401, sec. 35, may suspend 
 sentence during good behavior. But such suspension of sentence does not 
 alter the fact of conviction and a civil action for false imprisonment 
 of such person cannot be sustained. 
 
 Davis V. Standish, 26 Hun, 608 
 
 Civil damage suit by wife whose means of support were injured by 
 intoxication of husband while fishing, which resulted in his death by 
 drowning. Intoxication caused in whole or in part which renders one 
 incapable of earing for himself and of protecting himself from the results 
 of accidents or circumstances to which he was subjected by reason of 
 which death follows, is the direct and proximate cause. If the liquor 
 was sold without a license the fact might be considered as a basis for 
 exemplary damages. 
 
 Cited, 
 Reid V. Terwllliger, 116 N. Y. 530 
 Reid V. Terwllliger, 42 Hun, 310 
 Rawlins v. Vidvard, 34 Hun, 205 
 Bacon v. Jacobs, 63 Hun, 51 
 
 Devoe V. Van Vranken, 29 Hun, 201 
 
 In a suit for damages occasioned plaintiff by defendant's excavations in 
 a highway, where plaintiff had testified that his injuries made it im- 
 possible for him to work as before, it is competent proof in mitigation of 
 damages that from constitutional condition or the excessive use of in- 
 toxicating liquors he had long been unqualified to do a full day's work. 
 
 Doorley v. McConnell, 78 Hun, 580 
 
 Violation by her grantor of covenants not to use premises for liquor 
 traffic affords no ground for ejectment proceedings against grantee. 
 
 DriscoU V. Schultz, 31 How. Pr. 343 
 
 Constitutionality of Metropolitan Police Bill denied. 
 
XXX Digest of Decisions 
 
 Dubois V. Miller, 5 Hun, 332 
 
 Civil Damage Act constitutional. License no protection, but evidence of 
 sales prior to enactment of statute improper. 
 
 Cited, 
 Volans V. Owen, 9 Hun, 558 
 Mead v. Stratton, 87 N. Y. 493 
 Quain v. Russell, 8 Hun, 319 
 Dudley v. Parker, 132 N. Y. 38U, affirming 55 Hun, 29 
 
 Liability under Civil Damage Act, L. 1873, ch. 646, dependent upon 
 intoxication as the proximate cause of injury. 
 
 "The purpose of this statute was to place the responsibility for the 
 injurious consequences to others than the intoxicated person, upon those 
 who furnish the liquor which produced the intoxication of the person, 
 by whom, while in and by reason of that condition or in consequence of 
 it, the injury should be caused or suffered. The obligation is one of the 
 incidents imposed by statute upon the liquor traffic. The question, 
 when it arises, is not one of care or diligence on the part of the seller, 
 but is simply one of cause and effect." 
 Dudley v. Parker, 55 Hun, 29, affirmed, 132 N. Y. 386 
 
 Liability under civil damage action for damages resulting from intoxi- 
 cation not of a person to whom liquors were directly sold, but for whom 
 they were purchased and the dealer had reason to believe that some 
 other person than the one to whom the same were delivered was interested 
 in the purchase and was to drink the same in whole or in part. 
 DuPuy V. Cook, 90 Hun, 43 
 
 Test of injury under Civil Damage Act is not whether mother by utmost 
 effort could just earn her living, and the fact that her son voluntarily 
 supported her does not affect her right of action. 
 DuPuy V. Quinn, 61 Hiin, 237 
 
 A juror's prejudice against liquor selling does not disqualify him from 
 sitting in a case arising under Civil Damage Act, provided he is in- 
 different between the parties and could render an impartial verdict 
 irrespective of wliat he thought of the business. 
 Cited, 
 Fortune v. Trainer, 19 N. Y. Supp. 598 
 Elliot V. Barry, 34 Hun, 129 
 
 When defendant in civil damage suit allowed her husband to use her 
 saloon property under his license, the fact of her ownership does not 
 necessarily establish her connection with the business. That question 
 should be submitted to the jury. 
 Ennis v. Brown, 1 App. Div. 22 
 
 Covenants not to use premises for inn or hotel do not run with the 
 land. 
 Ex parte Persons, 1 Hill, 655 
 
 Excise board not compelled by mandamus to issue license withheld 
 because it considered liquor traffic a public evil. 
 Cited, 
 Peo. ex rel. Seller v. Wright, 3 Hun, 306 
 In re Bloomlngdale, 38 N. Y. Supp. 162 
 People v. Norton, 7 B:irb. 477 
 
 Kelley v. Excise Commissioners, 54 How. Pr. 327 
 Mayor v. Mason, 4 E. D. S, Rep, 142 
 
Under Former Excise Laws xxxi 
 
 Fincke v. Police Commissioners, 66 How. Pr. 318 
 
 Did the conviction of a bartender at licensed premises forfeit the license 
 ipso facto under the Law of 1873? If the record of conviction does not 
 show that the violation occurred at the licensed premises how can that 
 information be supplied? 
 
 Injunction will not lie to restrain an illegal arrest because the law 
 affords an adequate remedy. 
 
 Cited, 
 Kenny v. Martin, 11 Misc. 652 
 
 Fitch V. easier, 17 HuHj 126 
 
 Persons attending " Fourth of July party " at a hotel upon invitation 
 of keeper, certain accommodations being furnished for a sum, are not 
 " guests " of the hotel and the keeper is not liable for injuries to plain- 
 tiff's horse in the latter's care. " It is not the amount of refreshments 
 but the character under which the purchaser buys them which determines 
 the relations of the parties." 
 
 Cited, 
 People V. Brede, April 1897, unreported 
 
 Ford V. Ames, 36 Hun, 571 
 
 Complaint under Civil Damage Act sufBcient, where it was alleged that 
 the intoxication from which damage resulted " was caused in whole or 
 in part by intoxicating liquors sold or given away by the said Ames, 
 his agents or servants at and upon said place," there being no allegation 
 that such liquors were sold or given away to Ford. Held sufficient. 
 
 Franklin v. Schermerhorn, 8 Hun, 112 
 
 Civil damage suit. Reaffirmance of its constitutionality as a part of 
 statute declared so by Metropolitan Board of Excise v. Barrie, 34 N. Y. 
 657, making every person taking a license personally responsible for the 
 consequences involved in the sale of liquors. 
 
 Statute gives aa many rights of action as there are persons injured, 
 but a wife may recover only her own share of money lost through her 
 husband's intoxication, not her children's share also. 
 Excessive verdict. 
 Case where party was not intoxicated solely by liquor sold by defendant. 
 
 Cited, 
 Volans V. Owen, 9 Hun, 558 
 Reid v. Terwilliger, 116 N. Y. 530 
 Reid V. Terwilliger, 42 Hun, 310 
 Aldrich v. Sager, 9 Hun, 539 
 Rawlins v. Vidvard, 34 Hun, 205 
 
 Furman v. Knapp, 19 .Johns. 248 
 
 Conflict between charter of New York City allowing mayor to license, 
 and State Excise Law requiring license of Excise Commissioners. Both 
 licenses necessary. 
 
 Goodwin v. Young, 34 Hun, 252 
 
 Civil Damage Act held not to authorize a recovery for injuries done in 
 Vermont as a result of intoxication from liquors purchased in this State. 
 
xxxii DitiiosT OF Dkcisions 
 
 Goram v. Cable, 17 N. V. Siipii. ()(i2 
 
 Court not able to say as a matter of law that two men who have drunk 
 
 a pint of whiskey in one day are intoxicated. 
 Griffith V. Wells, 3 Din. 22li 
 
 One who sells liquor without license cannot recover against purchaser. 
 Excise Law does not liave revenue for its sole purpose, because it 
 
 forbids certain persons from trafHcking in liquor, requires all to give a 
 
 bond, etc., with a view of preventing some of the evils which are so likely 
 
 to flow from the traflie in spirituous liquors. 
 
 Cited, 
 People V. neliLin, 17 N. Y. 516 
 Smith V. Joyci', 12 Barb. 21 
 Turck V. Richmoud, Vi Barb. 533 
 
 Hall V. Germain, 14 .\. \'. Supp. fi, a/liniic<l, 131 N. Y. 536 
 
 "A principal is always answerable civilly for the acts of the agent done 
 within the scope of his autljority." Landlord lialile under Civil Damage 
 Act if his Hf.'^ent leased tlio prenii-f- for the liquor traffic. 
 
 Cited, 
 Comstock V. Hopkins. (11 Hun, 189 
 Relnhardt v. Frltz.sclii.', il'J Hun, 565 
 
 Hall v. Germain, 131 .\. \'. .'i.lii. af)ini'i,ifi 14 X. Y. Siipp. 5 
 
 Landlord's liability under Civil Damage Act, L. 1873, ch. 646. Renting 
 agents notit'p uf use nf priiiii-.cs imputable to landlord. The liquor sold 
 must have contributed in an appreciable degree to the into.xication which 
 resulted in the injury complained nf. 
 
 Cited, 
 O'Rourke v, Piatt, 67 Hun, 71 
 
 Hall V. McKechnie, 22 Barb. 244 
 
 Penalty action for four penalties in justices court against a firm for 
 selling liquor without license. Held, to be joint liability for sales by 
 their clerks when they were in tlie ^tnre in like manner as if they had 
 personally sold. 
 Hasbrouck v. Weaver, 10 lolins, 247 
 
 Husband answerable for a forfeiture in a civil suit under a penal statute 
 (1 R. S. 680, sec. l.")) incurred by his wife who sold liquor in his house 
 without license while he was absent and without liis consent. 
 Cited, 
 Board of Kxii.se Comiiiis- ioncrs v. Dougherty, 5.''i Barb. 332 
 Board of Commissioners v. Keller, 20 How. Pr. 280 
 
 Hayes v. Phelan, 4 Hiui, 7;i;t. i-oi ii,l<it. 5 Hun, 3;!:") 
 
 Civil Damage Act is constitutional. PlaintifT as the wife of deceased 
 person claimed daniarrcs " in being deprived of the companionship of 
 her husband and of the customary support and maintenance of herself 
 and children " where death resulted from intoxication. Here declared 
 that no right of recovery exists against the vendor of the liquors pro- 
 ducing the intoxication unless a similar right existed against the person 
 intoxicated on account of some injury to person or property, the statute 
 only intending to throw responsibility for injurious acts of intoxicated 
 
Under Former Excise Laws 
 
 person on vendor of liquors. Also that the death of husband injures a 
 wife's means of support, the loss being without injury. 
 Cited, 
 
 Dubois V. Miller, 5 Hun, 332 
 Jaclison V. Brookins, 5 Hun, 530 
 Smitli V. Reynolds, 8 Hun, 128 
 Volans V. Owen, 9 Hun, 558 
 Mead v. Stratton, 87 N. Y. 493 
 Quain v. Russell, 8 Hun, 319 
 Brookmire v. Monaghan, 15 Hun, 16 
 Moriarty ¥. Bartlett, 34 Hun, 272 
 
 Hess V. Appell, 62 How. Pr. 313 
 
 Under L. 1857, when overseers of poor did not prosecute within ten days 
 a complaint accompanied by reasonable proof, the complainant could com- 
 mence penalty actions. Held that when non-resident complainant filed 
 complaint of such' a general character and against so many places, sup- 
 ported only by the statements of witnesses whose occupation, place of 
 business or residence is not disclosed, the overseers of the poor were not 
 required to act, regardless of what motives or impulses actuated the 
 complaint, etc., etc. 
 
 Hill V. Berry, 75 N. Y. 229 
 
 Liability under Civil Damage Act for damages to wife resulting from 
 husband's intoxication itself. 
 
 Cited, 
 Neu T. McKechuie, 95 N. Y. 632 
 
 Hill v. Board of Supervisors, 53 Hun, 194 
 
 Liquor dealer who gives liquor to persons, who subsequently and conse- 
 quently play " rough house " with his premises, not entitled to recover 
 under act to provide compensation for destruction of property by mob. 
 
 Horton v. Carrington, 1 How. Pr. (N. s.) 124 
 
 Sale of liquors compounded with other substances. That same were sold 
 without license at a place not described in the complaint is immaterial 
 where the defendant is not misled. 
 
 Horton v. Parsons, 40 Hun, 224 
 
 Penalty action for sale of liquors without a license under the statute 
 L. 1857, ch. 628, section 13 — a sale was requisite to a cause of action. 
 " The defendant was a practicing physician and surgeon, and the evidence 
 tends to prove that he kept whiskey and other liquors in his drug store 
 • for the purpose of preparing and compounding medicines.' This he 
 had the right to do in a proper manner." 
 
 When a party keeps liquor for sale, and upon request delivers without 
 qualification liquor called for, a sale will be presumed with an implied 
 promise to pay, but in the absence of proof that the defendant kept 
 liquor for sale, such presumption will not prevail and proof of intent 
 to sell must be shown. " There may and may not have been a sale, 
 and to constitute it required an agreement express or implied. Without 
 the element of sale in the transaction, the act of the defendant in letting 
 the person who obtained the liquor have it, was, in the legal sense and 
 for the purposes of this action innocent." 
 
 iii 
 
DiGKST OV DliCISKJNS 
 
 Horton v. Parsons, 37 Hun, 42 
 
 Penalty actions maintainable by overseers of poor should be brought 
 by such officer in his individual name followed by his official title. 
 
 Non-compliance with certain statutory provisions does not hinder him 
 from commencing penalty actions as a de facto officer, already entered 
 upon the discharge of liis duties. 
 
 Cited, 
 Horton v. Parsons, 40 Hun, 224 
 Peo. ex rel. Brooks v. Watts, 73 Hun, 404 
 
 IngersoU v. Skinner, 1 Den. 540 
 
 Penalty action maintainable against several defendants jointly com- 
 mitting one offense and judgment properly entered against each for full 
 amount recovered. 
 
 Cited, 
 Hall V. McKechnle, 22 Barb. 244 
 
 Jabbitt V. Giles, 22 Hun, 274 
 
 Indefinite complaint on information and belief addressed to overseer of 
 poor did not obligate him to sue for penalties. 
 
 Jackson v. Brookins, 5 Hun, 530 
 
 Civil damage suit. Recovery of wife against landlord, tenant and another 
 for sale of liquor to husband who became intoxicated and was killed in 
 a drunken fight. Rule : " If death ensues as a natural and legitimate 
 result of the intoxication it is covered by the language of the statute." A 
 joint action will lie against landlord and tenant, but not another liquor 
 dealer who sold liquor at a different time and place. 
 
 Called, 
 Rawlins v. Vidvard, 34 Hun, 205 
 Smith V. Reynolds, 8 Hun, 128 
 Mead v. Stratton, 87 N. Y. 493 
 Reid V. Terwilliger. 116 N. Y. 530 
 Quain V. Russell, 8 Hun, 319 
 Brookmire v. Monaghan, 15 Hun, 16 
 Morenus v. Crawford, 15 Hun, 45 
 
 Jackson v. Sandman, 18 N. Y. Supp. 894 
 
 Testimony of witnesses paid to get evidence is regarded with grave 
 
 suspicion by courts and juries. 
 
 Improper evidence as to conversation between -(vitness and another 
 
 in the absence of defendant that he was satisfied of the defendant's guilt. 
 Pecuniary interest of jurors who had contributed or would contribute 
 
 to defray expenses of excise investigations and prosecution. 
 Kee V. McSweeney, 15 Abb. N. C. 229 
 
 Sufficiency of reference in complaint to statute imder which penalty is 
 
 demanded. 
 Kelly V. E.-cise Commissioners, 54 How. Pr. :V2~ 
 
 A lodging house witliout kitchen or dining-room accommodations is not 
 
 a hotel, even if proprietor will send out for meals ordered by his guests. 
 
 No more is a restaurant merely because its proprietor could send out for 
 
 necessiuy bedding, etc., when a guest might be willing to lodge there 
 
 under those circumstances. 
 
Under Former Excise Laws xxxv 
 
 A free lunch at the bar or the occasional bringing of victuals from a 
 neighboring restaurant will not transform a saloon into a hotel. 
 
 Kenny v. Martin, 11 ilisc. 051 
 
 Pool or billiard room may be a public place. Injunction will not lie to 
 restrain police oflicer from making arrests in the execution of the 
 Criminal Law. The police are expressly charged with the duty of pre- 
 venting infractions of the law on all days of the week. It is for them 
 to decide who are guilty of offenses, and whether to apprehend the 
 offenders and take them before the proper police magistrate, to the end 
 that he may determine, after hearing all the proofs adduced, if in the 
 particular case there has been a violation or not. For a court to inter- 
 pose by injunction restraining the police from interfering, would be to 
 decide in advance that certain acts done upon the Sabbath would not 
 operate as -violations of law, vs^hen the manner of doing them in a 
 particular instance might clearly establish an infraction. It would pre- 
 vent the police from exercising that surveillance which their duties call 
 for, and might defeat rather than aid the ends of justice. 
 
 Kerley v. Mayers, 10 Misc. 718 
 
 Refusal to grant a tenant license does not relieve the latter from liability 
 to pay the rent to landlord. 
 
 Ketcham v. Foz, 52 Hun, '2S4 
 
 Landlord not liable to same extent as tenant even though the latter be 
 deemed the agent of the former. Landlord is not liable for exemplary 
 damages, unless in some way assenting to or responsible for the aggravat- 
 ing circumstances that furnish occasion for such damages. 
 
 Cited, 
 Reid T. Terwilliger, 116 N, Y. 530 
 
 Killip V. McKay, 13 X. Y. St. Rep. 5 
 " Strong and spirituous liquors." 
 
 " The courts take judicial notice that the common beverages sold under 
 the name of ale and beer are intoxicating; and when drink is sold under 
 the name of lager beer and is so near in taste and appearance that the 
 same cannot be readily distinguished from ale or beer it is some evidence 
 on the question whether it is intoxicating or not." 
 
 Every intelligent person knows that the process of manufacturing lager 
 beer is the same in all essential particulars as that of making other 
 kinds of ale and beer from grain, and that the only real difference so 
 far as intoxicating properties are concerned is the lesser per cent, of 
 alcohol in it. 
 
 Cited, 
 Blatz V. Rohrbach, 116 N. Y. 450 
 
 Koehler v. Olsen, 08 Hun, 03 
 
 That intere-^t or right which a debtor has under Laws of 1892, chap. 
 
 401 in his license transferable only with permission of Excise Board 
 
 is not property which can be reached by a creditor's action. 
 Korn v. Schedler, 11 Daly, 234 
 
 Court will take judicial notice that the holder of an innkeeper's license 
 
 conducts a hotel. 
 
Digest of Decikions 
 
 Parties entering into buaineas relations with the licensee and sharing 
 
 its benefits will be subjected to its burdens. 
 Kreiss v. Seligman, 8 Barb. 4:i!) 
 
 Contract for sale of liquors not illegal and therefore not unenforceable 
 
 on the ground that purchaser may put them to unlawful use by 
 
 vending without license. 
 Lawrence v. Gracy, 11 Joliiis. 171J 
 
 Evidence of a parol license incompetent because it could not amount to 
 
 authority to sell liquors. 
 Lawson v. Eggleston, 28 App. Div. 52, a/finned, 164 N. Y. 600 
 
 What proof warrants jury in finding for plaintiff in civil damage suit. 
 Leicht v. Board of Excise, 46 X. Y. St. Rep. 835 
 
 The prohibition, Laws 1892, chap. 401, against licensing places within 
 
 two hundi-ed fcpt of a church or school held not applicable to a person 
 
 whose license expired the day before said act took effect, because it 
 
 expressly excepted persons previously licensed. 
 
 Cited, 
 Wynehamer v. People, 13 N. Y. oTS 
 
 Lewin v. Johnson, :!2 Hun, 4(IS 
 
 Sale of liquor without license not indictable at common law, and is 
 not an offense malum in se. Knowledge by a vendor that liquor sold 
 was to be resold in violation of the Excise Law does not make the sale 
 invalid. 
 
 Lovelan v. Briggs, '.ii Hun, 477 
 
 Civil damage suit by widow of a man who while suffering from deliriirm 
 tremens took poison and died thereby injuring her " means of support." 
 Held, that mere proof of a sale t^^'o weeks before his death and that 
 he had been seen coming from defendant's store intoxicated does not 
 prove sale of liquor which caused intoxication in whole or in part, 
 because he might have been intoxicated before entering the store and 
 obtained no liquor there at all. 
 
 Ludwiger v. Glaessel, 34 Hun, 312 
 
 Civil damage suit. Improper to ask defendant about transfer of his 
 property to his wife immediately after commencement of action. The 
 mother of infant children may maintain action for all damages sustained 
 upon being assigned the children's share by their guardian. 
 
 McCarty v. Wells, 51 Hun, 171 
 
 Intoxication need not be immediate and proximate cause of death. 
 
 Statute makes no distinction between cases in which loss of means of 
 
 support is the direct result of intoxication and those in which it is 
 
 the remote result thereof. 
 
 When sale of one drink produced intoxication in whole or in part 
 
 though followed by procurement of liquor elsewhere. 
 
 How intoxication may be proved. 
 
 McDonald v. Edgerton, 5 Barb. rM) 
 
 Cited as authority that purchase of liquors at an inn is suflicient to 
 constitute the purchaser a guest. 
 Cited, 
 People V. Bredp, April 1897, unreported 
 
Under Forjiee Excise Laws xxxvii 
 
 McGowan v. Deyo, 8 Barb. 340 
 
 Recovery on a bond given under seo. 7 of Act of 1845 to a justice of 
 the peace by plaintiff unsuccessfully suing for penalties in name of 
 overseers, who have omitted to sue is not defeated by repeal of statute. 
 Penalties under statute do not survive it, but liability under the bond 
 does, it being a contract for indemnity and protection to overseers against 
 costs upon a failure to recover judgment, whether from defect of proof, 
 an oversight in conduct of proceedings or repeal of statute imposing 
 penalties. 
 
 McNaughton v. Board of Excise, 5 Misc. 457 
 
 Boards of Excise may not be elected to refuse to grant licenses. When 
 a town has voted directly on excise propositions. Excise Commissioners 
 are dispensed with. When elected they are required to exercise judg- 
 ment, investigate and determine as to the fitness of man and place and the 
 needs of the particular locality. 
 
 Cited, 
 Peo. ex rel. Deutsch v. Dalton, 9 Misc. 247 
 Peo. ex rel. MucWe v. Board of Excise, 13 Misc. B37 
 
 McRoberts v. Winant, 15 Abb. Pr. 210 
 
 Statute requiring officer to file a bond not to be construed so as to defeat 
 will of people. Construed as directory where bond was filed late. 
 
 Manchester v. Harrington, 10 N. Y. 164 
 
 Penalty action for sale " without having a, license " maintainable in no- 
 license town under L. 1845 as amended. 
 Where action survives expiration of overseer's term of office. 
 
 Cited, 
 
 Bellinger v. Birge, 54 Hun, 511 
 Hitchens v. Peo. 1 Cow. Cr. 97 
 
 Marks v. Connell, 12 Weekly Digest, 6 
 
 Evidence that " liquor " was sold is sufficient. 
 
 Matter of Bloomingdale, 38 N. Y. Supp. 162 
 
 A license to sell liquor is not a matter of right. A rule of an Excise 
 Board adopted in the exercise of its discretion that an existing store- 
 keeper's license must be surrendered and the place closed before a new 
 place would be licensed — ^will not be disturbed. 
 
 Cited, 
 
 Matter of Sohonmaker, 15 Miso. 648 
 
 Matter of Breslin, 45 Hun, 210 reversing 7 N. Y. St. E,ep. 764. See also 107 
 N. Y. 607 
 L. 1857, ch. 628, did not prohibit hotel keepers from selling liquors to 
 guests with meals although its sale as a beverage was prohibited. 
 
 Cited, 
 
 In re Whitney, 3 N. Y. Supp. 838 
 
 Peo. ex rel. Watkins v. Excise Commissioners, 4 Misc. 547 
 
 Matter, of DeVaucene, 31 How. Pr. 289 
 
 Metropolitan police bill not a local one. 
 
 Was constitutional because a regulatory, not a prohibitory measure. 
 
 Part of law might be unconstitutional without invalidating remainder. 
 
xxxviii Digest op Decisions 
 
 Matter of Excise License, 38 N. Y. Supp. 425 , ir ■ 
 
 General decision in reference to review of refusal of license by l!.xcise 
 
 Board. 
 
 Oited, 
 
 Peo. ex rel. Connelly v. Murray, 38 N. Y. Supp. 177 
 
 Matter of Ketchum, 31 How. Pr. 289 
 
 Metropolitan police bill not a local one. 
 
 Was constitutional because a regulatory, not a prohibitory measure. 
 
 Part of law might be unconstitutional without invalidating remainder. 
 Matter of Macy, 5 App. Div. 70 
 
 Locked door not walled or boarded up still an entrance. 
 
 Gited, 
 
 Matter of Johnston v. Fogarty, April 1897, unreported 
 
 Matter of Martin, 2 How. Pr. (N. S.) 26 
 
 The Code of Civil Procedure § 3271 does not authorize the requirement 
 that a citizen suing in the name of an overseer of the poor give security 
 for costs. 
 
 Defendant entitled to bill of particulars showing persons to whom 
 liquors were alleged to have been sold; or, if the plaintiff is unable 
 to give the names of such persons, this fact should be averred with 
 circumstances of sale suflBcient to apprise the defendant of the offense 
 charged. If the sales were made by his agent he would not have personal 
 knowledge, yet proof of sales by his agent or servants would conclude 
 him on the trial. 
 
 Matter of Ryan, 6 jMisc. 478 
 
 Citing case where proceedings were unsuccessfully brought to remove 
 two Excise Commissioners who refused to grant licenses on account of 
 local prohibition. 
 
 Matter of Schomaker, 15 Misc. 648 
 
 Court reviewing refusal of Excise Board to issue license can only 
 inquire as to whether or not fair and debatable grounds exist to form 
 the foundation of a discretion. Different rule when reviewing revocation 
 of license. Holder of license held responsible for conduct of place 
 which became disorderly though he was no longer its owner nor in any 
 way connected with the property. 
 
 Matter of Semken, 13 Misc. 488 
 
 In the absence of statutory authority the city court of New York has 
 no jurisdiction in certiorari proceedings even though L. 1893, chap. 
 481 provides that the writ may be returnable to and heard by a city 
 court. 
 
 Matter of Whitney, 3 N. Y. Supp. 838 
 
 Where saloon keepers have been accustomed to keep open between hours 
 of 1 and 5 o'clock A. M. in disregard of L. 1873, ch. 549, neither neglect 
 to observe it or acquiescence in its violation, will entitle any one to 
 repeat that violation of the injunction of the law without exposing 
 himself to the punishment therefor. 
 
 Matter of Wood v. Excise Commissioners, 9 Misc. 507 
 
 " With costs " in a special proceeding to review determination of Excise 
 
Under Former Excise Laws xxxix 
 
 Commissioners means costs under see. 3240 of the Code of Civil Pro- 
 cedure. 
 Maxwell v. Gerard, 84 Hun, 537 
 
 When relationship of guest at hotel terminates. 
 Mayor v. Mason, 4 E. D. S. 142 
 
 Licensee has no right to trafBc in liquor upon expiration of his license 
 no matter if licensing officials did not perform their duty. 
 Whether defendant had a license or not " was a matter peculiarly 
 within his own knowledge and the burden of showing that he had a 
 license was cast upon him by proof of the fact of a sale of the spirituous 
 liquors." 
 Gited, 
 
 Peo. V. Nyce, 34 Hun, 298 
 
 Kelley v. Excise Commissioners, 54 How. Pr. 327 
 
 Mayor v. Walker, 4 E. D. S. 258 
 
 Traffic in liquor prior to passage of license laws was free at common law. 
 Excise Law not repealed by a no license vote, though in consequence 
 of it the power to grant licenses would be suspended or taken away. 
 Prohibitory Act of 1855 did not immediately repeal Excise Laws of 
 1824 and 1827. 
 Mead v. Stratton, 87 N. Y. 493, reversing 8 Hun, 148 
 
 Recovery under Civil Damage Act, L. 1873, ch. 646, for death of hus- 
 band of plaintiff while intoxicated. Joint liability of wife, who owned 
 hotel, with her husband, who sold the liquor, depended on question of 
 fact submitted to jury as to whether she permitted him to occupy hotel 
 as a place of traffic. 
 Cited, 
 
 Conklin v. Tice, 1 N. Y. Supp. 803 
 
 Reinhardt v. Fritzsche, 69 Hun, 565 
 
 Bacon v. Jacobs, 63 Hun, 51 
 
 McCarty v. Wells, 51 Hun, 171 
 
 Beers v. Walhizer, 43 Hun, 254 
 
 Reid V. Terwilliger, 42 Hun, 310 
 
 Neu V. McKechnie, 95 N. Y. 632 
 
 Blatz V. Rohrbach, 116 N. Y. 450 
 
 Reid V. Terwilliger, 116 N. Y. 530 
 
 Dudley v. Parker, 132 N. Y. 386 
 
 Moriarty v. Bartlett, 34 Hun, 272 
 
 Metropolitan Board of Excise v. Barrie, 34 N. Y. 657 
 
 L. 1866, ch. 578, creating Metropolitan Board of Excise declared consti- 
 tutional, and unexpired licenses granted within the metropolitan district 
 under the law previously in force, L. 1857, ch. 628, afforded no pro- 
 tection after the former act took effect. " No one Legislature can curtail 
 the power of its successors to make such laws as they deem proper 
 in matters of police." 
 Cited, 
 
 People T. Burleigh, 1 Crim. Rep. 522 
 
 In re Bloomingdale, 38 N. Y. Supp. 162 
 
 Peo. ex rel. Beller v. Wright, 3 Hun, 306 
 
 Franklin v. Schermerhorn, 8 Hun, 112 
 
 Peo. ex rel. Connelly v. Murray, 38 N. Y. Supp. 177 
 
 Rubenstein v. Kahn, 5 Misc. 408 
 
xl Digest of Decisions 
 
 Peo. ex rel. Presmeyer v. Commissioners, B9 N. Y. 92 
 
 Bertholl v. O'Reilly, 74 N. Y. 509 
 
 Volans V. Owen, 9 Hun, 558 
 
 People V. Meyers, 95 N. Y. 223 
 
 Matter of Lyman v. Erie County Athletic Club, 46 App. Dlv. 387 
 
 Kresser v. Lyman, 74 Fed. 765 
 
 Hilliard v. Giese, June 1898, unreported 
 
 Peo. ex rel. Binsteld v. IMurray, 4 App. Div. 185 
 
 People v. Cox, 106 App. Div. 307 
 
 Montgomery v. Odell, 67 Hun, 169 
 
 Legality of certificate dependent upon election of certain excise com- 
 missioner. 
 
 Directory provision as to time excise commissioners should sit to grant 
 licenses. 
 
 Cited, 
 
 Peo. ex rel. Davis v. Truman, 4 IMisc. 247 
 
 Peo. ex rel. Watkins v. Excise Commissioners, 4 Misc. 547 
 
 Montgomery v. Odell, 73 Hun, 424, affirtued, 142 N. Y. 665 
 
 Execution cannot be issued on judgment for costs against overseer of 
 poor in action brought by hira as such. Deposit by informers to secure 
 payment of costs awarded against them personally on account of mis- 
 management or bad faith not available to defendant for payment of 
 costs against overseer. 
 
 Morenus v. Crawford, 51 Hun, 89. See 15 Hun, 45 
 
 Action brought against two hotel keepers discontinued as against one 
 may be continued against another under Civil Damage Act. 
 Cause of action survived death of plaintiff. 
 
 Evidence of convictions for violations of Excise Law competent for 
 purpose of affecting weight of testimony. 
 Vited, 
 
 Matter of Lyman v. Schrake, N. Y. L. J. March 18, 1901 
 
 Morenus v. Crawford, 15 Hun, 45 
 
 Civil damage suit. Complaint alleged that two different liquor dealers 
 conspired to sell and did sell plaintiff's husband liquors resulting in 
 his intoxication and the killing of plaintiff's horse. Charge of conspiracy 
 treated as surplusage. Proof showed that the husband became intoxi- 
 cated by liquor purchased of both dealers in separate transactions at 
 different places instead of from liquor sold jointly by defendants. Held, 
 that two separate, wrongful acts, committed severally by two different 
 defendants do not warrant a joint action or joint recovery. 
 
 Moriarty v. Bartlett, 99 N. Y. 651, reversing 34 Hun, 272 
 
 Action under Civil Damage Act does not survive death of defendant. 
 
 Moriarty v. BarUett, 34 Hun, 272, rcveiscd. 99 N. Y. 651 
 
 In civil damage suit it was held that cause of action survived defendant 
 and could be maintained against the estate, which, however, was declared 
 not liable for exemplary damages. 
 Cited, 
 Ludwlg V. Glaessel, 34 Hun, 312 
 
 Mundy v. Excise Commissioners, 9 Abb. N. C. 117 
 
 Reference to statute in another means the statute as amended, not as 
 originally passed. 
 
Under Former Excise Laws xli 
 
 Special provision for a hotel keeper's license did not preclude the holding 
 of the general ale and beer license. 
 Cited, 
 
 People V. Smith, 69 N. Y. 175 
 
 Murray v. Weston, 23 App. Div. 623 
 
 Covenants against traffic can be enforced as regards every one not 
 personal guests on the covenanted premises. Such liquor only to be 
 served with meals or in private rooms. Apartment house and hotel 
 distinguished. 
 
 Neu V. McKechnie, 95 N. Y. 632 
 
 Recovery exemplary damages under Civil Damage Act, L. 1873, ch. 646, 
 by son of man who killed his wife while intoxicated and committed 
 suicide, against persons who sold the liquor which was the proximate 
 cause of injury, without license. 
 
 Cited, 
 
 Wilber v. Dwyer, 69 Hun, 507 
 Bacon v. Jacobs^ 63 Hun, 51 
 Streever v. Birch, 62 Hun, 298 
 Ketcham v. Fox, 52 Hun, 284 
 Blatz V. Rohrbach, 116 N. Y. 4B0 
 Reid V. Terwilliger, 116 N. Y. 530 
 Rawlins v. "Vidvard, 34 Hun, 205 
 Reid V. Terwilliger, 42 Hun, 310, 402 
 Beers v. WalUzer, 43 Hun, 254 
 McCarty v. Wells, 51 Hun, 171 
 
 Nevin v. Ladue, 3 Denio, 437, 450, reversing 3 Denio, 43 
 
 Ale and strong beer are included in the term " strong and spirituous 
 liquors," as used in 1 R. S. sec. 680, making it penal to sell such 
 liquors without a license. 
 
 But an admission by the party prosecuted that he had sold " ale, strong 
 beer or fermented beer," does not prove him guilty of the offense. 
 
 Cited, 
 
 Board ol Commissioners r. Taylor, 21 N. Y. 173 
 
 Rau V. People, 63 N. Y. 277 
 
 Blatz V. Rohrbach, 116 N. Y. 450 
 
 Killip v. McKay, 13 N. Y. St. Rep. 5 
 
 Board of Commissioners v. Freehoff, 17 How. Pr. 442 
 
 Olp V. Leddick, 14 N. Y. Supp. 41 
 
 Excise commissioners may settle penalty action in furtherance of general 
 public opinion upon fair and reasonable terms. 
 
 Penalty actions maintainable not because of actual indebtedness existing 
 by contract from the person who has been guilty of an infraction of 
 the law, but designed to be repressive of offenses punishable by quasi 
 criminal prosecution as well as criminal. 
 
 O'Rourke v. Piatt, 07 Hv.n, 71 
 
 Landlord not liable under Civil Damage Act where lease was expressly 
 conditioned against the sale of liquors and the proof showed that tenant 
 deceived landlord throughout tenancy. 
 
 Overseer v. Warner, 3 Hill, 150 
 
 Provisions of 1 R. S. 678 requiring tavern and innkeeper to have in 
 his house two spare beds, etc., applied only to licensed houses, so 
 
xlii DifiiiST OF Decisions 
 
 that it was not unlawful for defendant to have sign showing that he 
 kept a temperance hotel. 
 
 Cited, 
 
 People V. Jones, 54 Barb. 311 
 
 People V. Krushaw, 31 How. Pr. 344 
 
 Mayor v. Mason, 4 E. D. S. Rep. 142 
 
 People V. Murphy, 5 Park. 130 
 
 In re Brewster v. Hillman, 39 Misc. 690 
 
 Palmer v. Doney, 2 Johns. Cases, 346 
 
 License granted by two of three excise commissioners without presence 
 or consent of the supervisor — not valid, and afforded no protection. New 
 trial granted but court directed that no testimony of any forfeiture 
 previous to the meeting of the commissioners on the 8th of April be 
 admitted, for public inns being for the public convenience, a traveler is 
 not to be barred the necessary refreshments they afford from the neglect 
 of public officers. 
 People v. Adams, 17 ^^■end. 475 
 
 Indictment for selling liquors without license need not specify names 
 of persons to whom sales were made if unknown and so alleged. 
 Charge of selling divers liquors to divers citizens and divers persons 
 unknown alleges only one offense. 
 
 Charge of offense on a particular date with continuendo — ^good because 
 latter can be disregarded as surplusage. 
 Cited, 
 
 People V. Polhamus, 8 App. Div. 133 
 
 Osgood V. People, 39 N. Y. 449 
 
 People V. Sinell, 131 N. Y. 571 
 
 People V. O'Donnell, 46 Hun, 358 
 
 People V. Gilklnson, 4 Park. 26 
 
 People V. Satchwell, 61 App. Dlv. 312 
 
 People V. Haren, 35 Misc. 590 
 
 People V. Huffman, 24 App. Div. 233 
 
 People V. Schmidt, 19 Misc. 458 
 
 People V. Ferranto, December, 1898, unreported 
 
 People v. Adelphi Club, 149 N. Y. 5 
 
 Bona fide social clubs not subject to excise taxes because they did not 
 sell liquors within the meaning of L. 1892, ch. 401, but only distributed 
 the same among members. 
 Cited, 
 
 Peo. ex rel. Rochester Whist Club v. Hamilton, 17 Misc. 11 
 
 Matter of Lyman v. Young Men's Cosmopolitan Club, 28 App. Dlv. 127 
 
 People V. Andrews, 50 Hun, 501, n ik rscil . 115 N. Y. 427 
 
 Jurisdiction of special sessions under old Excise Law. Surrender of its 
 jurisdiction and investment of grand jury with jurisdiction. 
 Fake club not entitled to statutory protection of hona fide social clubs 
 and the question as to whether an organization has been effected for 
 an illegal purpose is one for the jury. 
 Cited, 
 
 People V. Adelphi Club, 149 N. Y. 5 
 
 Matter ot Lyman v. Young Men's Cosmopolitan Club, 28 App. Div. 127 
 
Under Former Excise Laws xliii 
 
 People V. Andrews, 115 N". Y. 427, reversing 50 Hun, 591 
 
 Withdrawal of preliminary examination before magistrate and direct 
 presentation of case to grand jury permitted. Criminal liability of 
 club steward upon selling liquor without a license. " Five hundred 
 men buy a quantity of liquor, they store it and appoint an agent to 
 manage it. On the application of one of the five hundred the agent 
 separates a small quantity from the mass of liquor, fixes its value, 
 delivers the quantity so separated, as directed, and receives the value 
 or price in money. What is that but a sale? It is not an evasion 
 of the statute; it is a violation of it." 
 
 Cited, 
 
 People V, Luhrs, 7 Misc. 503 
 
 People V. Adelphi Club, 149 N. Y. 5 
 
 People V. Bradley, 11 N. Y. Supp. 594 
 
 People V. Sinell, 12 N. Y. Supp. 40 
 
 Matter ot Lyman v. Young Men's Cosmopolitan Club, 28 App. Dlv. 127 
 
 Peo. ex rel. Ferro v. Andrews, 3 N. Y. St. Eep. 547 
 
 License refused under It. 1882, ch. 410, on the ground that public 
 concerts consisting of music on piano and violin to attract patrons 
 had been given, sustained. 
 
 Peo. ex rel. Haughton v. Andrews, 104 N. Y. 570, affirming 42 Hun, 614 
 
 Appointment of excise commissioners in New York city under L. 1884, 
 ch. 43. 
 
 Peo. ex rel. Killeen v. Baird, 11 Hun, 289 
 
 Defendant charged with selling liquor on Sunday tried and convicted 
 
 before the city judge of Yonkers under the city charter which gave 
 
 certain ofScers power to arrest such offenders without warrant and gave 
 
 the judge power to " hear, try and determine " such charges. Held, that 
 
 inasmuch as selling liquor unlawfully was an offense triable by jury 
 
 when the constitution was adopted and when it was therein declared 
 
 that " the trial by jury in all cases in which it has been heretofore 
 
 used shall remain inviolate forever," the defendant should have had a 
 
 jury trial in the city judge court. 
 
 Cited, 
 
 People V. Burleigh, 1 Crim. Rep. 522 
 
 People V. Ball, 42 Barb. 324 
 
 Argumentative allegation of offense, viz. sale of liquor " on the 13th day 
 
 of October in the year and place aforesaid which said day was the day 
 
 of the week called and known as Sunday " is a sufficient charge of 
 
 Sunday violation even though the date was wrong, the same being 
 
 the 12th day of the month. 
 
 Cited, 
 
 People V. Krank, 46 Hun, 632 
 
 Peo. ex rel. Sickles v. Becker, 3 N. Y. St. Rep. 202 
 
 Mandamus to compel Excise Board to act on pending complaints to revoke 
 license. While excise commissioners have some discretion as to the 
 order and time of the trial of cases coming within their jurisdiction, 
 " they have no right to arbitrarily refuse to try a class of cases pre- 
 sented because they question the propriety of enforcing the law involved 
 therein." 
 
xljy Digest of Decisions 
 
 Motives and character of complainants or the method by which the 
 witnesses obtain evidence should have very little to do wath the decision 
 of the case. 
 Cited, 
 
 Peo. ex rel. Welling v. Meaklm, B6 Hun, 629 
 
 People v. Behan, 17 N. Y. 516 . , ^, ■ ■ n 
 
 Sale without license under L. 1857, ch. 628, sec. 13, pumshable criminally 
 
 as well as civilly. 
 Cited, 
 
 Rollins V. Breed, 54 Hun, 485 
 
 People V. Charbineau, 115 N. Y. 433 
 
 Schwab V. People, 4 Hun, 520 
 
 Hill V. People, 20 N. Y. 363 
 
 Poote V. People, 56 N. Y. 321 
 
 People V. Smith. 69 N. Y. 175 
 
 People V. Hislop, 77 N. Y. 331 
 
 Peo. ex rel. Hislop v. Cowles, 16 Hun, 577 
 
 Peo. ex rel. Shorten v. Markell, 20 Misc. 149 
 
 Peo. ex rel. Jay v. Bennett, 14 Hun, 63 
 
 Proceeding instituted by relator, as owner, to recover possession of 
 premises leased to defendant, with restriction as to the sale of liquors 
 thereon, because sub-lessee of tenant engaged in the sale of liquor without 
 a license, which was an " illegp.l trade " within the meaning of L. 1873, 
 ch. 583, and which terminated the lease. 
 Cited, 
 
 Peo. ex rel. Shaw v. McCarty, 62 How. Pr. 152 
 
 Peo. ex rel. Jay v. Bennett, 14 Hun, 58 
 
 Proceedings to remove tenants for non-payment of rent. Lease restricted 
 sale of liquors and provided that if the covenant was broken, a double 
 rent should be paid, and construed as liquidated damages for breach of 
 covenant aforesaid. Held, that the landlord might exact increased rent 
 on account of different use of premises covenanted in lease; that it 
 was rent, not liquidated damages; and for non-payment, tenant could 
 be dispossessed. 
 
 Peo. ex rel. Jones v. Bennett, 4 JMisc 10 
 
 Eights of applicants for licenses and powers of excise commissioners 
 summarized : 
 
 1. " That no person has an absolute legal right to receive a license. 
 
 2. That the granting or withholding of a license is within the discretion 
 of the commissioner of excise. 
 
 3. That where an application for a license had been received and acted 
 upon and the discretion of the commissioners exercised whether they will 
 or will not grant a license and if in the exercise of that discretion they 
 have not proceeded upon illegal grounds or principles, the conclusion 
 at which they arrive upon such exercise of their discretion will not be 
 disturbed by the court. 
 
 4. That the court itself is not vested with the powers of excise com- 
 missioners and will not determine whether a license should or should 
 not be granted." 
 
 A return of the excise commissioners showing that in their estimation 
 
Under Forbier Excise Laws xlv 
 
 the license applied for was not needed should be sustained where no 
 demand was made for a more explicit return as to whether this was 
 because they intended to limit the number of licensed places or because 
 none were desired by the electors. 
 Cited, 
 
 Peo. ex rel. Hopkins v. Commissioners, 4 Misc. 330 
 
 Peo. ex rel. Deutsch v. Dalton, 9 Misc. 247 
 
 Matter of Sliomaker, 15 Misc. 648 
 
 lu re Bloomingdale, 38 N. Y. Supp. 162 
 
 People V. Berberrich, 20 Barb. 224 
 
 Prohibitory Liquor Law in dictum declared ' constitutional by justice 
 writing opinion. Held to be consistent with United States Customs 
 Act permitting importation of liquors to be sold as imported; but 
 judgment of conviction was reversed because defendant was deprived 
 of preliminary examination by magistrate and indictment by grand 
 jury, and was convicted at special sessions instead. Liquor held to be 
 property, but see dictum as to whether or not the Legislature is not 
 the sole arbiter and judge as to what extent public necessity requires 
 regulation of liquor trafBc the subject of such legislation being con- 
 eededly proper. 
 Cited, 
 
 Wynehamer v. People, 20 Barb. B67 
 
 People v. Cook, 45 Hun, 36 
 
 People V. Toynbee, 20 Barb. 224 ; affirmed, 13 N. Y. 378 
 
 Pea. ex rel. Fuhry v. Board of Excise, 91 Hun, 269 
 Application for transfer of license. 
 
 " Boards of Excise are organized for the purpose of regulating the sale 
 of liquors and they are clothed with power and discretion to determine 
 whether a license shall be issued to a particular person or for a 
 specified locality, so long as their action is within the scope of their 
 powers, and is just and reasonable, and free from oppression it is 
 subject \o no judicial control." 
 
 It was not the intention of the Legislature to transfer the discretion 
 vested in Boards of Excise of this State to the courts or judges. 
 
 Peo. ex rel. Funke v. Board of Excise, 24 Hun, 195 
 
 Certiorari to review the decision of a Board of Excise in refusing to 
 
 revoke a license pursuant to L. 1873, ch. 549, denied. Conceding the 
 
 mandatory nature of statute, it was nevertheless held that the duty to 
 
 revoke was dependent solely upon the satisfaction of the board that the 
 
 licensee had violated the statute — and that their decision could only be 
 
 reversed for legal error. Also that " the court has no power to revoke 
 
 the license, or to order a retrial or to direct the defendant to revoke 
 
 the license." 
 
 Cited, 
 
 Peo. ex rel. Welling v. Meakim, 56 Hun, 626 
 
 Peo. ex rel. McGrath v. Board of Excise, 18 N. Y. Supp. 884 
 
 Dismissal of indictment on demurrer not a bar to proceedings to cancel 
 license for same offense, viz: keeping open on Sunday. 
 
 Peo. ex rel. Muckle v. Board of Excise, 13 Misc. 537 
 
 The provisions for local option referred to in Excise Law of 1892 must 
 have been those of the tovm law for voting upon town propositions. 
 
xlvi Digest of Decisions 
 
 Excise eonmnssioners cannot arbitrarily refuse to issue licenses 
 Peo. ex rel. O'Toole v. Board of Excise, 16 N. Y. Snpp. 798, aflirmed, 13.3 N. Y. 
 
 C83 1 J .X. 
 
 Excise Board may refuse license solely because there are already three 
 licensed premises at the intersection of streets where a fourth license 
 is desired, because it is vested with power "to regulate" the sale of 
 liquor which includes the right to restrain it where necessary as well 
 as license only places and persons of good character. 
 
 Cited, 
 
 Peo. ex rel. Ryan v. Dalton, 7 Misc. 558 
 
 Peo. ex rel. Penny v. Board of Excise, 17 Misc. 98 
 
 What charge of keeping disorderly house implies. 
 Proof as to location of licensed premises where descriptions diflfer. 
 Peo. ex rel. Presmeyer v. Board of Excise, .59 N. Y. 92 
 
 L. IST.f, ch. .549, sec. 8. providing for cancellation of licenses by Boards 
 of Excise for the sale of liquor on Sunday or for other violations of 
 said .act, not unconstitutional, although the licensee has no jury trial. 
 That " the power to license the sale of intoxicating liquors and to cancel 
 such license when granted is vested in the Legislature, has been 
 determined by this court. The mode and manner in which this shall 
 be done rests in the discretion of that body." 
 Cited, 
 
 People V. Rau, 63 N. Y. 277 
 
 Peo. ex rel. Welling v. Meaklm, 56 Hun, 626 
 
 Olp V. Leddlck, 14 N. Y. Supp. 41 
 
 Matter of Lyman y. Erie Co. Athletic Club, 46 App. Div. 387 
 
 Matter of Lyman v. Texter, 59 App. Div. 217 
 
 Peo. ex rel. Sprague v. Board of Excise, 91 Hun, 94 
 
 Application for license which is defective because it lacks statutory 
 statements cannot be cured by alleging necessary facts in petition for 
 writ of certiorari. Practice in certiorari proceedings under L. 1893, ch. 
 481, whicli statute is similar to Liquor Tax Law, sec. 28, sub. 1. 
 
 Peo. ex rel. Buckley v. Board of Police, 63 N. Y, 623 
 
 L. 1872, ch. 687, providing for distribution of certain excise money to 
 Inebriates' Home, Kings county, not affected by L. 1873, ch. 863 so as 
 to authorize Board of Police and Excise of Brooklyn city to contest such 
 distribution. 
 
 Peo. ex rel. Hull v. Board of Supervisors of New York, 32 N. Y. 473 
 
 District attorney's duty to enforce Metropolitan Police Act, L. 1857, 
 ch. 212, sec. 21. (County liable for expenses of prosecution, even where 
 penalties recovered do not belong to county.) " It was eminently appro- 
 priate and just that each county specially benefited by the prohibition, 
 should be charged with the duty and expense of penal enforcement within 
 its bounds. We think this purpose was accomplished by charging the 
 duty of prosecution on the appropriate county officer." 
 
 People v. Bradley, 11 N. Y. Supp. 594 
 
 Steward of incorporated club furnishing club members -with liquors and 
 punching holes in members' refreshment card to the value received con- 
 victed of selling without license. It was entirely immaterial whether 
 
Undee Former Excise Laws xlvii 
 
 liquor was paid for at time of delivery, credit given or the charge 
 indicated by punching holes in the ticket. The question as to whether 
 the defendant had an interest in the liquor or was a mere agent delivering 
 and keeping it for the benefit of other people is of no importance. It 
 devolved upon defendant to prove license. 
 Cited, 
 
 People V. Luhrs, 7 Misc. 503 
 
 People V. Adelphi Club, 149 N. Y, 5 
 
 People V. Bradt, 46 Hun, 445 
 
 Mere arrest of defendant for keeping disorderly house not competent 
 evidence as to proprietorship of place where liquor is sold without 
 license. If convicted, his ownership of the place and his continued 
 presence there might have greater weight than a pretended leasing of 
 premises as a cover to his proprietorship. Sufficiency of allegation that 
 one bottle of liquor was sold, without limiting same as to quantity, 
 viz. : less than five gallons. 
 
 Cited, 
 
 Village of Cortland v. Howard, 1 App. Div. 134 
 
 People V. Brown, 16 Wend. 561 
 
 Sale of liquor without license is punishable as misdemeanor under 1, R. S. 
 682, although statute contains no other prohibition than the imposition 
 of a penalty and a provision that all offenses against the provisions 
 of the act are misdemeanors. 
 Cited, 
 
 Behan v. People, 17 N. Y. 516 
 
 Hill V. People, 20 N. Y. 363 
 
 People V. Hislop, 77 N. Y. 331 
 
 Peo. ex rel. Hislop v. Cowles, 16 Hun, 577 
 
 Rollins V. Breed, 54 Hun, 485 
 
 People T. Shea, 3 Park. 562 
 
 People T. Gilkinson, 4 Park. 26 
 
 People V. Brown, 6 Park. Cr. 666 
 
 Defendant charged with sale of liquor without license, who proved his 
 license, not properly convicted of selling liquor on Sunday, when he 
 could not legally sell liquor, because his license on its face covered 
 the whole period for which it was issued. 
 Cited, 
 
 Foote V. People, 56 N. Y. 321 
 People V. Krank, 46 Hun, 632 
 
 People V. Buffum, 27 Hun, 216 
 
 Joint indictment charging sale of liquor without a license where proof 
 showed a storekeeper's license to one who was discharged and a sale by 
 the other to be drunk on the former's premises which the license did 
 not permit. Held, that as the agent of the licensee, defendant was doing 
 business and protected by his license, so that he also should be discharged 
 because of variance between charge and proof. 
 Cited, 
 
 People v. Bradley, 11 N. Y. Supp. 594 
 
 People v. Burleigh, 1 X. Y. Crim. R. 522 
 
 Offense of public intoxication within jurisdiction of magistrate under 
 
xh'iii Djcjiost of Decisions 
 
 L. of 1867 notwithstanding provisions of Code of Criminal Procedure 
 confening jurisdiction on courts of special sessions. 
 Cited, 
 
 Peo. ex rel. Comatord y. Dutcher, 83 N. Y. 240 
 
 Peo. ex rel. Murray v. Justices, 74 N. Y. 406 
 
 People V. Putnam, 3 Park. 386 
 
 People V. Van Houton, 13 Misc. 611 
 
 Peo. ex rel. Brooks v. Bush, 22 App. T)i\. 363 
 
 Irregularities in conduct of election. Effect upon validity of result of 
 local option contest. 
 Peo. ex rel. Dakin v, Byrne, 9 Abb. N. C. 127 
 
 Lfpon application for peremptory writ of mandamus to compel superin- 
 tendent of police to enforce the Excise Law by closing saloons on 
 Sunday, the return denied having intentionally permitted any viola- 
 tion of law, and a special verdict rendered to the efTeet that defendant 
 had failed and neglected to close and keep closed certain saloons during 
 a specified period of time. Held, that verdict did not show that the 
 failure to do so resulted from a design to allow the law to be systematic- 
 ally violated, ilandamus will not lie to compel officer to do his duty 
 during specified period long passed. 
 
 Until something has been established showing that the law is not 
 designed or intended to be enforced a court of justice cannot inter- 
 pose its authority. 
 People v. Capen, 2(1 Hun, 377 
 
 Defendant took order for liquor in no-license town of Corinth, Saratoga 
 county, took order to his master at Glens Falls, who filled it by giving 
 liquor ordered to servant who took it to Corinth, delivered it to the 
 purchaser and received pay therefor. 
 
 Held, to lie a sale at Corinth. Upon the whole case we think it would 
 be a violation of law to send liquors from one town where a license 
 permits a sale to another town where the sale is unhxwful, by an agent 
 or servant of the seller, to be delivered and pay therefor collected of 
 the purchaser. 
 People V. Charbineau, 115 N. Y. 433 
 
 Sale less than five gallons without license a crime indictable -under L. 
 1857, though not so expressly declared. Indictment charging such an 
 offense also charging in separate count such a sale of liquor to be 
 drunk on premises not aemurrable as charging more than one offense. 
 Cited, 
 
 People V. Bradley, 11 N. Y. Supp. 594 
 People V. Huffman, 24 App. Div. 133 
 People V. Wilson, 151 N. Y. 409 
 People V. Brede, April, 1897, unreported 
 Peo. ex rel. Curran v. Commissioners, 12 Misc. 296 
 
 Refusal of excise commissioners to permit a transfer because of an alleged 
 sufficient number of licensed places in the vicinitv, followed immediately 
 by favorable action on a similar application held to be arbitrary. 
 Peo. ex rel. Friel v. Commissioners, 2 App. Div. 89 
 
 Upon application to revoke a license, proof of conviction of a woman for 
 selling liquor on Sunday at licensed premises without proof that she 
 
Under Formee Excise Laws xlix 
 
 sold with licensee's permission or that she was not a member of his 
 family, etc., not sufficient because unless the licensee is convicted there 
 must be two convictions to warrant the revocation. 
 Cited, 
 
 Cullinan v. Burkard, 41 Misc. 325 
 
 Matter of Lyman v. Malcolm Brewing Co., 160 N. Y. 96 
 
 Pec. ex rel. Hopkins v. Commissioners, 4 Misc. 330 
 
 A declaration by an excise board that an application for a license has 
 been refused in the exercise of their discretion after due consideration 
 and deliberation on the merits will not be sustained upon judicial review 
 where it appears that the excise commissioners have arbitrarily deter- 
 mined not to issue any licenses because they were elected not to issue 
 them. 
 
 Cited, 
 
 Peo. ex rel. Muckle v. Board of Excise, 13 Misc. 537 
 
 Peo. ex rel. Kidd v. Commissioners,. 25 N. Y. Supp. 873 
 
 " While local option does not exist in the strict meaning of. that term 
 in this State, there is a practical local option." If excise commissioners 
 conclude that they will grant no licenses, their decision may not be 
 reviewed. 
 
 Peo. ex rel. Van Demark v. Commissioners of Excise, 7 Abb. Pr. 34 
 
 Mandamus will not lie to compel a Board of Excise to grant a license, 
 especially after the expiration of the ten day session in which the 
 statute of 1857 authorizes licenses to be issued. 
 
 " The structure of modern statutes, and especially those on the subject 
 of excise, creates a pressure upon the courts often difficult and em- 
 barrassing. The present law has been perhaps as much as any other 
 the subject of reproach, even to the charge of absurdity in its pro- 
 visions. The duty of the court, however, without regard to those 
 complaints, will be best discharged by the attempt to give it such fair 
 construction as a whole and in its several parts as shall be most 
 consistent with the apparent intent of the Legislature, without reference 
 to the hardships or the inconvenience in particular cases." 
 
 Peo. ex rel. Watkins v. Commissioners, 4 Misc. 547 
 
 That portion of Excise Law of 1892 relative to local prohibition has 
 reference to the system of voting for excise commissioners who should 
 favor local prohibition. Although the last commissioner elected may 
 have been in favor of license, the last vote of the town does not reverse 
 local prohibition, because the commissioners act as a body, — the majority 
 control. 
 Cited, 
 
 Peo. ex rel. Deutsch v. Dalton, 9 Misc. 247 
 Peo. ex rel. Wood v. Commissioners, 75 Hun, 226 
 
 Peo. exi rel. Wood v. Commissioners, 75 I-Iun, 224 
 
 Refusal of excise commissioners to issue licenses because elected as " no- 
 license commissioners" sustained, under L. 1892, ch. 401, recognizing 
 "local option" by electing excise commissioners under L. 1874, ch. 444. 
 Cited, 
 
 Peo. ex rel. Muckle v. Board of Excise, 13 Misc. 537 
 
 iv 
 
1 Digest of Dkci signs 
 
 Peo. ex rel. Hislop v. Cowles, 16 Hun, 577, affirined, 77 N. Y. 331 
 
 Habeas corpus to release one convicted in special sessions for " selling 
 and giving " liquors to an intoxicated person in violation of L. 1857, 
 ch. 628, sec. 18, and sentenced to pay $25 and certain imprisonment. 
 Statute created a new offense and provided that whoever shall sell or 
 give away liquors thus — " shall be subject to not less than ten or 
 more than twenty-five dollars for each offense." 
 
 Held, that the new offense was not a misdemeanor; that only the 
 particular penalty prescribed by the statute could be imposed and the 
 only mode of collecting it could be applied. 
 Peo. ex rel. Hislop v. Cowles, 77 N. Y. 331, affirming 16 Hun, 577 
 
 Sale to intoxicated person in violation L. 1857, ch. 628, sec. 18 not 
 punishable criminally but civilly. 
 Cited, 
 
 People V. Charbineau, 115 N. Y. 433 
 People v. Cramer, 22 App. Div. 189 
 
 What facts justify inference of a sale. 
 
 Information alleging facts on information and belief without stating 
 sources of same insufficient, except as to allegation that defendant had 
 no license because the people are not required to prove that. 
 Gited, 
 
 Peo. ex rel. Stevenson Brewing Co. v. Lyman, 67 App. Div. 447 
 People v. Cramer, 2 ParkJ Cr. 171 
 
 The plea of "autre fois convict" cannot be established without proof. 
 Where the record does not show offenses are identical it lies with the 
 defendant to establish by proof, aliunde, that such was the fact. 
 People V. Crilley, 20 Barb. 246 
 
 "Ale " not a " wine " or a " strong or spirituous liquor " within mean- 
 ing of 1 R. S. 680. 
 uited, 
 
 Board ot Commissioners v. Taylor, 21 N. Y. 173 
 Peo. ex rel. Deutsch v. Dalton, 9 Misc. 247 
 
 "Florence Mission" as described not used exclusively as a church. 
 Power of court reviewing decision of excise commissioners. 
 Gited, 
 Peo. ex rel. Simons v. Murray, 14 Misc. 177 
 Peo. ex rel. Ryan v. Dalton, 7 Misc. 558 
 
 Fake hotel under Excise Law of 1892 established to evade rule of Excise 
 Board in New York city not to grant saloon licenses for three corners 
 of intersecting streets. Decision of Excise Board sustained. Hotel not 
 necessarily entitled to license even if it is the only one in the neigh- 
 borhood. "Liquor is not ncessary to the existence of a hotel." 
 Gited, 
 
 Peo. ex rel. Connelly v. Murray, 38 N. Y. Supp. 177 
 People V. Davis, 45 Barb. 494, affirmed. 36 N. Y. 77 
 
 Jurisdiction over sales upon boundary line of two counties or within 
 500 yards of such boundary given to either of such counties by 2 R. S. 
 727, sec. 46. 
 
Under Formbu Excise Laws 
 
 Tavern keeper's license issued under L. 1857, ch. 628, held void and 
 aflfording no protection because defendant was not a resident of town 
 where issued, and even if valid did not authorize sale of liquor in a 
 mere saloon, and defendant was bound to show that he kept an inn, 
 tavern or hotel and kept liquors for sale there only. General verdict, 
 where there are several counts in indictment is not erroneous where 
 there is one good count which is sustained by evidence. 
 
 People V. Dillman, 4 Wkly. Dig. 251 
 
 " Lager beer, if proved intoxicating, it is now well settled comes within 
 the prohibition against strong and spirituous liquors." 
 It is not necessary that buyer of liquor " to be drunk on premises," 
 should drink or intend to drink the entire contents of a glass, which 
 he only tasted. 
 
 People V. Eastwood, 14 N. Y. 562 
 
 Witness may state whether one was under the influence of liquor. 
 Cited, 
 
 Lewin V. Johnson, 32 Hun, 408 
 McCarty v. Wells, 51 Hun, 171 
 
 Peo. ex rel. Meakim v. Eckman, 63 Hun, 209 
 
 Sale of liquor to a minor is a violation of a liquor dealer's bond con- 
 ditioned that his premises shall not become disorderly. 
 Prescribed criminal penalty for such offense no bar to action on bond. 
 Excise commissioners had discretion in the matter of issuing licenses 
 under Law of 1857. 
 
 Is not licensee estopped from denying validity of bond? 
 Cited, 
 
 Lyman v. Shenandoah Social Club, 39 App. Div. 459 
 
 Lyman v. Brucker, 26 Misc. 594 
 
 Peo. ex rel. Gentilesco v. Excise Board, 7 Misc. 415 
 
 The obvious purpose of the enactment (L. 1892, sec. 43) is to seclude 
 the church and tbe schoolroom from the baneful proximity of the saloon 
 — Si beneficent policy to which by a liberal construction of the law the 
 courts should be auxiliary. The intention of the law was that " while 
 saloons already licensed within 200 feet of a church or school may be 
 continued, the approach of no other saloon shall be permitted within 
 the privileged locality," even though the applicant held a license else- 
 where when the law was enacted. It would even have been competent 
 for the Legislature to revoke a license which might have been held 
 for a place within the prescribed limits. 
 Cited, 
 
 Peo. ex rel. Deutsch v. Dalton, 9 Misc. 247 
 
 Peo. ex rel. Clausen v. Murray, 16' Misc. 398 
 
 Peo. ex rel. Clausen v. Murray, 5 App. Div. 441 
 
 Peo. ex. rel. Bagley v. Hamilton, 25 App. Div. 428 
 
 Matter of Place v. Matty, 27 App. Div. 561 
 
 Matter ot Lyman v. Korndorler, 29 App. Div. 390 
 
 Peo. ex rel. Ketcham v. Excise Commissioners, 18 N. Y. Supp. 621, a/firmed, 
 64 Hun, 632 
 When the excise eommissioner.s refuse to issue a license, and application 
 is made under L. 1886, ch. 496, for a writ of mandamus as therein 
 
Hi Digest of Decisions 
 
 provided for, the court before which such proceeding is brought is 
 autliorized to summarily decide whether the discretion vested in the 
 excise commissioners has been abused, and is not required to submit the 
 issues to a jury as in a trial under an alternative writ of mandamus. 
 Pec. ex rel. Booth v. Fisher, 20 Barb. (J;32 
 
 Violations of Prohibitory Act of 1855 as well as all offenses which are 
 not capital or otherwise infamous crimes are left under regulation of 
 the Legislature in regard to trial by jury, and provision that such 
 offenses be triable at special sessions is constitutional. 
 
 Cited, 
 Wynehamer v. People, 13 N. Y. 378 
 
 People v. Fitzgerald, 8 N. Y. Supp. 81 
 
 Exclusion of evidence showing names of persons found in licensed 
 
 premises by accusing witness prejudicial to defendant. 
 Peo. ex rel. Kresser v. Fitzsimmons, 68 N. Y. 515 
 
 Regularity of appointment of Albany excise commissioners under L. 
 
 1870, ch. 175. 
 
 Cited, 
 
 Peo. ex rel. Babcock v. Murray, 5 Hun, 42 
 
 People V. Foote, 56 X. Y. 321 
 
 L. 1857, penalties, sec. 29 does not apply to all offenses specified in 
 act. Sale without license punishable under 2 E. S. 697, sec. 40 (fixing 
 punishment for misdemeanors not otherwise provided for). 
 Vited, 
 
 Rollins V. Breed, 54 Hun, 485 
 
 People V. Krank, 46 Hun, 632 
 
 People V. O'Donnell, 46 Hun, 358 
 
 People V. Hlslop, 77 N. Y. 331 
 
 Peo. ex rel. Hlslop v. Cowles, 16 Hun, 577 
 
 Neu V. McKechnie, 95 N. Y. 632 
 
 People V. Krank, 46 Hun, 632 
 
 People V. Charbineau, 115 N. Y. 433 
 
 Peo. ex rel. Healey v. Forbes, 52 Hun, 30 
 
 Billiard table may be kept in tavern if not used for gambling— not 
 gambling where loser of game pays for table. Is gambling if, directly 
 or indirectly anything else as cigars, drinks or money is at stake. 
 Cited, 
 
 Peo. ex rel. Silkins v. McGlynn, 62 Hun, 237 
 
 People v. French, 3 Park. Cr. 114 
 
 That one of two persons indicted together sold liquor as a clerk of the 
 other and by his direction is no defense. 
 
 Right to preliminary examination before magistrate does not by impli- 
 cation destroy complainant's right to present matter directly to grand 
 jury. 
 
 Peo. ex rel. Kopp v. French, 39 Hun, .507, afjHrm,'d. 102 X. Y. 583 
 
 A person who has been arrested, convicted and fined for a violation of 
 sec. 17 of ch. r!28 of L. 1857, as amended by ch. 856, L. 1869, in that 
 he has been found intoxicated in a public place has been convicted of 
 a crime." 
 
Under Former Excise Laws liii 
 
 " The words ' offense ' and ' crime ' are used as synonyms indiscrimin- 
 ately, as meaning the same thing." 
 Pec. ex rel. Kopp v. French, 102 N. Y. 583, affirming 39 Hun, 507 
 
 " Offense of intoxication" created by L. 1857, oh. 628, sec. 17, as amended 
 L. 1869, ch. 856, is a crime. 
 Cited, 
 
 Morenus v. Crawford, 51 Hun, 89 
 
 Peo. ex rel. Shorten v. Markell, 20 Misc. 149 
 
 People V. Gainey, 8 Hun, 60 
 
 Under L. 1870, ch. 175, sec. 3, licenses are declared to " expire at the 
 end of one year from the time they are granted," but as May first 
 was the time fixed for granting licenses, the commissioners very properly 
 limited a license issued thereafter to the next May and it afforded no 
 protection after that date. 
 
 People V. Gates, 56 N. Y. 387 
 
 L. 1870, eh. 175, sec. 2 — appointment of excise commissioners in cities. 
 
 Peo. ex rel. Meakim v. Giegerich, 14 N. Y. Supp. 263 
 
 County clerk of Kew York county not entitled to six cent fee for filing 
 excise bonds, filed under L. 1857, ch. 828. 
 
 People V. Gilkinson, 4 Park. Cr. 26 
 
 The use of the word " or " instead of " and " is fatal in indictment 
 only where it renders the statement of the offense uncertain. 
 Contirtuendo in indictment charging sale of liquors without license on a 
 particular date is- harmless surplusage. 
 Cited, 
 
 People V. Brown, 6 Park. 666 
 
 Peo. ex rel. Schuler v. Schatz, 50 App. Div. 544 
 
 People V. Gregg, 59 Hun, 107 
 
 Proper form of indictment under code. Does common laborer, sales 
 agent, teamster, etc., participate in manufacture of liquor? A city 
 mayor as the head of its police is not a police ofiicial within L. 1890, 
 chap. 163. 
 
 Cited, 
 
 People T. Olmstead, 74 Hun, 323 
 
 People V. Hannon, 13 N. Y. Supp. 117 
 
 People V. Ferranto, December, 1898, unreported 
 
 People V. Groat, 22 Hun, 164 
 
 Action under L. 1857, ch. 628, sec. 24, in the name of the people by 
 the commissioners of excise of Cooperstown instead of in their own 
 names, upon a license bond given under L. 1857, ch. 628, sec. 7, the 
 breach complained of being that the licensee suffered and allowed gambling 
 in his hotel. Held, that the want of a seal does not prevent recovering 
 and that as the people are the obligees in the bond, it is proper to sue 
 in the name of the people, unless there is some statutory law which 
 requires the action to be brought in the name of some other person. 
 
 Cited, 
 
 Peo. ex rel. Meakim v. Bckman, 63 Hun, 209 
 People V. Hannon, 13 N. Y. Supp. 117 
 
 An alderman though sharing power of common council to appoint and 
 
liv Digest of Decisions 
 
 remove policemen is not a police official within the meaning of L. 
 1890, ch. 163. 
 People V. Harmon, 49 Hun, 558, affirmed, 112 N. Y. 686 
 
 Time is material ingredient in offense of selling liquor on Sunday, so 
 that indictment charging this offense on two different Sundays is bad 
 for duplicity. 
 
 Cited, 
 
 People V. Haren, 35 Misc. 590 
 People V. Huffman, 24 App. Div. 233 
 People V. Brede, Sutherland, Co. J. 
 
 People V. Harrison, 28 How. Pr. 247 
 
 Bond of innkeeper not to suffer the inn or hotel to be disorderly or 
 suffer any gambling or "keep any billiard table or other gaming table 
 or shuffle board within" broken if he keeps billiard table, whether 
 gambling is suffered or not. 
 People V. Hart, 24 How. Pr. 289 
 
 It may be made to appear by proof that "lager beer" is a kind of 
 "beer" fovliidden by the act of 1802, but it is not sufficient in a 
 warrant without other averments because the court cannot take judicial 
 notice that lager beer belongs to the prohibited class. 
 Cited, 
 
 Blatz V. Rohrbach, 116 N. Y. 450 
 People V. Zelger, 6 Park. 355 
 
 People V. Hartmann, 10 Hun, 602 
 
 Indictments against excise commissioners for issuing licenses with the 
 freeholder's petition to persons without the ability to keep a tavern, nor 
 the neeessary aecomraodation to entertain travelers. L. 1857. ch. 628. 
 abrogated by L. 1870, ch. 175, sec. 4, as amended, L. 1873, ch.' 549^ 
 sec. 2, thereby dispensing with necessity for freeholder's petition, but 
 not abrogated in respect to restrictions upon sale of liquor by small 
 measure for use on premises. 
 
 Peo. ex rel. Kimball v. Haughton, 41 Hun, 558 
 
 Service of summons in cancellation proceedings before excise commis- 
 sioners upon bartender instead of licensee waived bv an appearance by 
 attorney and adjournment without objection. 
 
 Held, that " the proceeding is evidently designed to be summarv and to 
 depend upon such reliable information as the commissioners may be able 
 to obtain, to a reasonable certainty, establishing the existence of the 
 necessary fact." 
 
 "The evidence was sufficient for that purpose as long as no proof 
 whatever was given on behalf of the relator, tending to reduce its 
 efiect or m any manner excuse him from tlie truth of the charge it 
 tended to prove." 
 
 Cited, 
 
 Peo. ex rel. Welling v. Meaklm, 56 Hun, 626 
 Matter of Lyman v. Texter, 59 App. Dlv. 217 
 
 People V. Henschel, 12 N. Y, Supp. 46 
 
 Conviction for sale of liquors without license at auction. As to whether 
 
Under Forjiee Excise Laws Iv 
 
 there is sufl&oient proof of the intoxicating quality of lager beer properly 
 
 submitted to jury. 
 
 Cited, 
 
 People V. Luhrs, 7 Misc. 503 
 
 People V. Hill, 20 N. Y. 363 
 
 Intoxication a crime triable by jury upon furnishing proper bail bond 
 under L. 1857, ch. 628, as at common law. 
 
 Cited, 
 
 Peo. ex rel. Killeen v. Baird, 11 Hun, 289 
 
 Foote V. People, 56 N. Y. 321 
 
 People V. Hislop, 77 N. T. 331 
 
 People V. Charbineau, 115 N. Y. 433 
 
 Peo. ex rel. Shorten v. Markell, 20 Misc. 149 
 
 People V. Hitchins, 39 N. Y. 454 
 
 One act of gambling a violation of L. 1851, ch. 504. Purpose of act 
 
 not to regulate gambling but prohibit it. 
 
 Cited, 
 
 Peo. ex rel. Healey v. Forbes, 52 Hun, 31 
 
 People V. Hodgman, 4 Denio, 235 
 
 On the trial of an indictment for selling liquor without a license, the 
 prosecution can only give evidence of as many distinct offenses as there 
 are counts in the indictment. 
 
 Cited, 
 
 Schwab V. People, 4 Hun. 520 
 Smith V. Joyce, 12 Barb. 21 
 People V. Townsey, 5 Den. 70 
 
 People V. Huffstater, 5 Hun, 23 
 
 "Variance. Indictment charging sale of liquors in lesser quantity than five 
 o-allons without a license. Proof was that defendant had a storekeeper's 
 license only, but sold to be drunk on premises. Held, that " to make out 
 the offense intended by the pleader it must be proved that the accused not 
 only sold the liquor, but that he sold it to be drunk on the premises. 
 Whatever is essential to be proved must be averred." 
 
 Cited, 
 
 People V. Buflum, 27 Hun, 216 
 People v. O'Donnell, 46 Hun, 358 
 People V. Bradley, 11 N. Y. Supp. 594 
 
 People V. Hulbut, 4 Den. 133 
 
 Circumstantial evidence proper in excise case as well as in homicide 
 case; so that it was proper for witness to testify that defendant kept 
 a bar with bottles in it. 
 Cited, 
 
 Vallance v. Evarts, 3 Barb. 553 
 
 People V. Jefferson, 28 Hun, 52, affirmed, 101 N. Y'. 19 
 
 Indictment of person holding storekeeper's license charging him with 
 sale of liquors to be drunk on premises without a hotel or tavern license, 
 in violation of L. 1857, need not negative the holding of a license under 
 L. 1869, ch. 856, for sale of ale and beer to be drunk on premises. 
 If defendant could bring himself within provisions of that section he 
 should do so by proof. 
 
Ivi Digest op Decisions 
 
 People V. Jefferson, 101 N. Y. 19, affirming 28 Hun, 52 
 
 Unnecessary to negative exceptions favoring certain persons besides hotel- 
 keepers, who might sell liquor to be drunk on premises, etc., contained 
 in L. 1869, ch. 856, see. 4, in indictment for sale of liquors to be 
 drunk on premises without license as an inn, tavern or hotelkeeper 
 under L. 1857 as thus amended or as amended by L. 1870, ch. 175. 
 Cited, 
 
 People V. Charbineau, 115 N. Y. 433 
 
 People V. O'Donnell, 46 Hun, 358 
 
 People V. Bradley, 11 N. Y. Supp. 594 
 
 People v. Mcintosh, 5 N. Y. Cr. 38 
 
 People T. O'Donnell, 46 Hun, 361 
 
 People V. Bradley, 33 St. R. 565 
 
 People V. Haren, 35 Misc. 590 
 
 People V. Bates, 61 App. Div. 559 
 
 People V. Crotty, 22 App. Div. 77 
 
 People v. Brede, April, 1897, unreported 
 
 Matter of Lyman v. True Friends Social and Literary Circle, N. T L J 
 Dec. 7, 1897 
 
 People V. Jones et al., 54 Barb. 311 
 
 Excise commissioners held criminally liable for corruptly granting a 
 tavern keepers license for a place which they knew did not comply 
 with L. 1857 and have " at least three spare beds, and the necessary 
 bedding for the accommodation of travelers." Duties of excise com- 
 missioners and requirements of " hotels " considered. 
 Gilcd. 
 
 Peo. ex rel. Seller v. Wright, 3 Hun, 306 
 
 Smith V. People, 9 Hun, 446 
 
 People V. Meakim, 61 Hun, 327 
 
 In re Bloomingdale, 38 N. Y. Supp. 162 
 
 People v. Krank, 46 Hun, 032, reversed, 110 N. Y.'488. 
 
 Variance between proof of sale on Sunday, July 4th, without a license 
 instead of July 3d as alleged, immaterial, because precise time was 
 not a material ingredient. 
 
 Where an act constitutes two different offenses, punishable diflferently 
 under different portions of a statute, which portion thereof shall prevail; 
 e. g., that prohibiting the sale of liquor without license or that pro- 
 hibiting unlicensed persons from selling on Sunday? 
 People v. Krank, 110 X. Y. 488, reversing 46 Hun, 632 
 
 Time is not essence of crime of selling liquor without license under 
 L. 1857, as amended L. 1869, and it is unnecessary to establish that 
 the offense charged was committed on the veiy day laid in the indict- 
 ment. The fact that special provision is made punishing sale of liquor 
 on Sunday whether accused has license or not, L. 1873, ch. 549, sec. 
 21, does not make general prohibition of sale without license inapplicable. 
 One selling on Sunday without license would be liable to punishment 
 under either provision but conviction under one would bar prosecution 
 under other. 
 Cited, 
 
 People V. Polhamus, 8 App. Div. 133 
 
 People V. Charbineau, 115 N. Y. 433 
 
 People v. Huffman, 24 App. Div. 233 
 
Under Former Excise Laws Ivii 
 
 People V. Krushaw, 31 How. Pr. 344 
 
 Constitutionality of Metropolitan Police Bill denied. 
 Peo. ex rel. Kennedy v. Lahr, 71 Hun, 271 
 
 Eligibility of supervisor of city ward to office of excise commissioner 
 
 under L. 1892, ch. 401, sec. 3. 
 People V. Lavin, 4 N. Y. Ci-. 547 
 
 Variance between indictment charging sale on Sunday, May 18tli, and 
 
 proof showing sale April 20th — fatal. 
 
 Cited, 
 
 People V. Krank, 46 Hun, 632 
 
 People V. Luhrs, 7 Misc. 503, affirmed, 79 Hun, 415 
 
 The fact that one is acting as the agent of an incorporated club or 
 association does not exempt him from criminal prosecution for selling 
 liquors without a license to members of the club. Such cluba are subject 
 to the police power just as individuals are. A violator can have no 
 excuse or plea of ignorance to avoid the punishment that is fixed 
 by legislative authority. 
 
 Cited, 
 
 People V. Adelphi Club, 149 N. Y. 5 
 
 People V. Lyon, 27 Hun, 180 
 
 The provision of L. 1857, ch. 628, that " whenever any person is 
 seen to drink in any such shop or house, outhouse, yard or garden 
 belonging thereto, any spirituous liquors or wines, forbidden to be 
 drunk 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 drunk therein," is unconstitu- 
 tional, because the defendant is entitled to have the real question at 
 issue, namely, the question of intent determined by a jury from their 
 own judgment upon facts legally given in evidence. If the Legislature 
 can declare that a certain fact is prima facie evidence of guilt, so that 
 a jury must convict unless the defendant explains away such evidence, 
 it would seem to follow that it might declare what should be con- 
 clusive evidence of guilt. 
 People v. McDowell, 70 Hun, 1 
 
 License granted by de facto excise commissioner protects holder. 
 Peo. ex rel. Silkins v. McGlynn, 62 Hun, 237, affirmed, 131: N. Y. 602 
 
 A license may be revoked on breach of the conditions subject to which it 
 was taken, but not without proof other than an assurance of guilt by men 
 of good character where the accused denies guilt. The decision of the 
 Excise Board is subject to review. 
 People V. Mcintosh, 5 N. Y. Crim. 38 
 
 A complaint positively averring that defendant kept saloon and sold 
 liquor there, and as complainant believed without a license, is sufficient 
 to sustain the warrant. '" When an act is prohibited with an exception, 
 the exception is matter of defense." 
 
 Otted, 
 
 Matter ot Lyman v. True Friends Social and Literary Circle, N. Y. L. J., 
 Dec. 7, 1897 
 
Iviii L>i(_;est of Decisions 
 
 People V. Maxwell, 83 Hun, 157 
 
 Defendant prosecuted for selling liquor without license must show his 
 license if he has one. 
 
 Saving clause of L. 1892 relative to ix;peal of existing laws under which 
 defendants are prosecuted and punished is not ex post facto. 
 People V. Meakim, 61 Hun, 327, affirmed, 133 N. Y. 214 
 
 In criminal as in civil cases a defendant must be held to the position he 
 assumes. 
 
 Acquittal because of variance not a bar to second indictment and de- 
 fendant not then allowed to claim there was no variance. 
 People V. Meakim, 133 N. Y. 214, affirming 61 Hun, 327 
 
 Excise commissioners who neglect their duties by not acting upon charges 
 laid before them under L. 1870, ch. 175, sec. 8, as amended by L. 1873, 
 ch. 549, sec. 8, are punishable criminally under sec. 117 of the Penal 
 Code, as well as civilly. One proceeding is not a bar to the other. 
 Peo. ex rel. Welling v. Meakim, 56 Hun, 626, affirmed, 123 N. Y. 660 
 
 Mandamus on application of a citizen to compel excise board to decide 
 complaint against saloon keeper where their decision is unreasonably 
 delayed. 
 Cited, 
 
 People V. Meakim, 61 Hun, 327 
 People V. Meakim, 133 N. Y. 220 
 
 Matter o£ Lyman v. Erie County Athletic Club, 46 App. Div. 387 
 Peo. ex rel. Welling v. Meakim, 123 N. Y. 660, affirming 56 Hun, 626 
 
 Duty of excise commissioners to act reasonably promptly upon charges 
 preferred in citizen's proceeding to cancel license. See People v Meakim 
 133 N. Y. 214. 
 
 Mandamus will lie to compel determination. 
 People V. Meyers, 95 N. Y. 223 
 
 Conviction of defendant's barkeeper under L. 1873, ch. 549, for selling 
 liquor on Sunday, forfeited ipso facia defendant's license issued for the 
 premises where the violation occurred irrespective of independent remedies 
 for cancellation of certificate. 
 
 "The act easts upon the licensee the necessity, in order to protect him- 
 self in the enjoyment of the license, of seeing to it that no violation 
 shall be committed on the licensed premises. It is not left open to the 
 licensee to claim, in case of the conviction of another for such violation, 
 that It was committed without his knowledge or consent. The words 
 or at the place licensed ' were obviously inserted to meet this present 
 ca.se. 
 
 Jurisdiction in proceedings to revoke a license does not depend upon the 
 tact of a prior conviction. "It is an independent remedy '-it supple- 
 ments the provision in the prior clause, and operates as an additional 
 restraint upon the license. 
 Gitecl, 
 
 Matter of Schomaker, 15 Misc. 648 
 
 People v. Woodman, 3 N. Y. Supp. 92q 
 
 Peo. ex rel. Matthews v. Woodman, 4 N. Y. Supp. 532 
 
 Matter of Lyman y. Texter, 59 App. Div. 217 
 Peo. ex rel. McNutt v. Mills, 91 Hun, 142 
 
 Excise commissioners in the exercise of the discretion as to whom and 
 
Under Former Excise Laws lix 
 
 what places they will license may refuse license because the applicant 
 is not of good moral character and because the place kept by him is 
 frequented by disorderly women. 
 People ex rel. Hoy v. Mills, 91 Hun, 144 
 
 Excise commissioners may refuse license because sufficient places are 
 already licensed in neighborhood and such refusal will be sustained 
 unless ground assigned is not the real reason therefor. 
 People V. Morris, 13 Wend. 329 
 
 Statute forbidding grocers to sell liquor to be drunk on the premises 
 applies within incorporated municipalities same as throughout the State. 
 People ex rel. Stiner v. Morrison, 78 K. Y. 84 
 
 General provisions L. 1870, ch. 175, not repealed or superseded by New 
 York City Charter, L. 1873, ch. 335, see. 25, providing for appointment 
 of city officers and its amendment by L. 1873, ch. 549, and L. 1874, 
 ch. 642, and clearly indicative of the intention of the legislature not to 
 interfere with general system or place New York City upon any different 
 footing from other cities. 
 People V. MuUins, 5 App. Div. 172 
 
 All parties to a misdemeanor are principals. Record of conviction of 
 bartender not admissible in evidence against his employer, being prose- 
 cuted for the same offense. Same true of record of conviction of another 
 bartender for another offense committed at the same time. Same true 
 of depositions taken before magistrate in examination of said bartender. 
 People V. Murphy, 5 Park. Cr. 130 
 
 Hotel is none the less one because it is kept without license. 
 Any person whether licensed or not was punishable under L. 1857 for 
 selling liquor on election day within one-quarter mile of the polls. 
 Peo. ex rel. Babcock v. Murray, 70 N. Y. 521, revering 8 Hun, 579 
 
 L. 1870, ch. 175, sec. 2, does not legally authorize verbal appointment 
 of excise commissioners. 
 Peo. ex rel. Cairns v. Murray, 13 Misc. 522, reversed, 148 N. Y. 171 
 
 Purpose of restricting traffic near schools and churches and reason for 
 exceptions. 
 
 Held that construction of a church or school near a saloon is with notice 
 of latter's established rights. 
 Peo. ex rel. Cairns v. Murray, 148 N. Y. 171, reversing 13 Misc. 522 
 
 What constitutes a building used exclusively as a schoolhouse. Traffic 
 near schoolhouse under exception contained in L. 1893, ch. 480, sec. 43, 
 a personal privilege. 
 Purpose of exception. 
 Cited, 
 
 Peo. ex rel. Clausen v. Murray, 16 Misc. 398 
 
 Peo. ex rel. Clausen v. Murray, 5 App. Div. 441 
 
 Peo. ex rel. Bagley v. Hamilton, 25 App. Div. 428 
 
 Matter ot Place v. Matty, 27 App. Div. 561 
 
 Matter o£ Lyman v. Korndorfer, 29 App. Div. 390 
 
 Matter of Lyman v. Monahan, 48 App. Div. 275 
 
 Matter of Adriance v. Ramage, 59 App. Div. 439 
 
 Matter of Ritchie v. Samuely, 18 Misc. 341 
 
 Peo. ex rel. Sweeney v. Lammerts, 18 Misc. 343 
 
 Matter ot Zinzow v. Schmidt, 18 Misc. 653 
 
Ix Difj'EH'J' OF DeCJ SIGNS 
 
 Matter of Kesnler v. Oashin, 28 Misc. 336 
 
 Matter of Lyman v. Monahan, 28 Mlsc, 408 
 
 Matter of Lyman v. Lazarowitz, N. Y. L. J., June 7, 1899 
 
 Matter of Lyman v. Kissel, N. Y. L. J., June 7, 1899 
 
 Peo. ex rel. Clausen v. Murray, 10 ^lisc. '.i'M 
 
 Obvious policy of statute restricting traffic near school. Schoolhouse 
 and saloon on same street but entrance to latter on another street. 
 Building occupied exclusively as a schoolhouse by Christian Brothers. 
 "Additional use incidental only and no way inconsistent with its pri- 
 mary and paramount use as a schoolhouse — under control of school 
 authorities and instrumental to the end of imparting instruction;" and 
 " so trivial and insignilicant as not to detract from the pervading char- 
 acter of the building as a resort for learning." 
 
 Cited, 
 Matter of Pjace v. Matty, 27 App. Div. 561 
 Matter of Zlnzow v. Schmidt, 18 Misc. 653 
 Matter of Holden v. McCusker, 23 Misc. 446 
 Matter of Lewis v. Pilchen, 26 Misc. 532 
 
 Peo. ex rel. Connelly v. Murray, 38 N. Y. Supp. 177 
 
 An excise board demanding the surrender of an outstanding retailer's 
 license before granting a license for a new place in a city where 6,500 
 licenses are already in force may also decline outright to issue a license 
 for a particular place because immediate public necessity or convenience 
 does not demand it. 
 Cited, 
 
 Matter of Schomaker, 15 Misc. 648 
 
 Peo. ex rel. Macy v. Murray, r> App. Div. 6(1 
 
 Saloon traffic near school, on fifth floor of department store. "Accessibil- 
 ity not the only thing aimed at. It was the vicinity, the neishborhood, 
 the surroundings of the school which the statute was enacted to protect." 
 Locked door still an entrance and the fact that the proprietor promised 
 to keep it locked or fact that his license could be revoked for breach 
 of faith does not permit excise board to disregard the plain statute. 
 Cited, 
 
 Matter of Lyman v. Reynolds Bros., N. Y. L. J., Dec. 19, 1900 
 
 Matter of McMonagle v. Walnwright, 41 Misc. 4i3 
 
 Peo. ex rel. Redfield v. Murray, 87 Hun, 393, affirmed, U7 N. Y. 117 
 
 With the propriety of the granting of a license by excise commissioners, 
 even though once refused, the court reviewing such action has nothing to 
 do. The right of review is limited to cases where the license is 
 refused. 
 
 Cited, 
 
 Matter of Schomaker. 15 Misc. 648 
 .Mntter of Bl...,mingdale, 38 N. Y. Supp. lOS 
 
 Peo. ex rel. Schulz v. Murray, 2 App. Div. fi(l7 
 
 Refusal of ex<ise commissioner to grant license for place which until 
 six weeks prin,- to application had been disorderly sustained notwith- 
 standing proof that the new applicant was of good moral character and 
 
 intended to run a hole! for men only. 
 
Under Former Excise Laws Ixi 
 
 Peo. ex rel. Simons v. Murray, 14 Misc. 177 
 
 Building may be used exclusively for church though pastor or janitor 
 live there. What papers may be considered upon review of determination 
 not to issue license. 
 Peo. ex rel. Steffan v. Murray, 2 App. Div. 359 
 
 Removal of excise inspector after refusal to resign his civil service posi- 
 tion as such. 
 People v. Norton, 7 Barb. 477 
 
 Excise commissioners under 1 R. S. 677 did not act solely as judicial 
 ofl&cers. They did exercise discretion but their duties were so plainly 
 defined that a wilful disregard of them by issuing a license to a man not 
 of good moral character, without necessary accommodations to entertain 
 travelers and for a place not absolutely necessary, subjects the com- 
 missioners to indictment. 
 Cited, 
 
 Peo. ex rel. Seller v. Wright, 3 Hun, 306 
 In re Bloomingdale, 38 N. Y. Supp. 162 
 People V. Jones, 54 Barb. 311 
 
 Peo. ex rel. Lotz v. Norton, 76 Hun, 7 
 
 Consent of parties does not give Court of Special Sessions jurisdiction 
 not conferred by statute. 
 
 Information which does not charge sale of liquor in a prohibited manner 
 will not support a warrant. 
 People V. Nowak, 5 K". Y. Supp. 239 
 
 Information insufficient because it did not state particulars of a specific 
 offense. 
 Cited, 
 
 People V. Olmstead, 74 Hun, 323 
 Nowak V. Waller, 10 N. Y. Supp. 199 
 
 People V. O'Donnell, 40 Hun, 358 
 
 Indictment for selling without license. Demurrable because it charged 
 sales on divers days to divers persons. 
 Cited, 
 
 People V. Harmon, 49 Hun, 558 
 People V. Andrews, 74 App. Div. 542 
 People V. Haren, 35 Misc. 590 
 People v. Huffman, 24 App. Div. 233 
 
 People V. Olmstead, 74 Hun, 323 
 
 Information upon which a defendant is tried at Special Sessions must 
 sufficiently show the particular offense charged and the time of its 
 commission. 
 Cited, 
 
 Village of Cortland v. Howard, 1 App. Div. 131 
 People T. Polhamus, 8 App. Div. 133 
 Peo. ex rel. Ward v. Ford, January, 1902, unreported 
 People V. Bates, 61 App. Div. 559 
 
 People V. O'Rourke, 3 Hun, 225 
 
 Construction of following laws in harmony: 
 1857, ch. 628. 
 1869, ch. 856, amendatory. 
 
Ixii Digest oi' Decisions 
 
 1870, ch. 175, re-enactment. 
 L. 1857, provided two kinds of licenses: 
 
 1st. To tavern keepers permitting sale of liquors to be drunk on 
 
 premises. 
 2nd. To storekeepers in small measure, not to be so drunk. 
 
 Cited, 
 
 Smith V. People, 9 Hun, 446 
 Jefferson v. People, 28 Hun, 52 
 
 People V. Osgood, 39 N. Y. 449 
 
 Indictment charging sale of liquor to a person named ana " divers other 
 citizens" not bad for duplicity. Election by district attorney as to 
 kind of liquor sold, unnecessary, unless trial court directs. Authority of 
 agent to act for defendant a question for the jury. 
 Cited, 
 
 People V. Polhamus, 8 App. Div. 133 
 
 People T. O'Donnell, 46 Hun, 358 
 
 People V. Huffman, 24 App. Div. 233 
 
 People V. Schmidt, 19 Misc. 458 
 
 People V. Ferranto, December, 1898, unreported 
 
 People V. Owens, '.H Hun, .344, affirmed, 148 N. Y. 648 
 
 Evidence showing glasses on bar in front of three men in a locked room 
 unsupported liy proof that the glasses contained liquor, when or why 
 or by whom they were placed there, or who the men were, is insufficient 
 to sustain a charge that the man behind the bar sold liquor or exposed 
 it for sale on Sunday. 
 
 People V. Owens, 148 X. Y. 648, affirming 91 Hun, 344 
 
 Proof of sale on Sunday, held insufficient in case where defendant was 
 
 seen behind bar, three men in front of it and two glasses on bar with 
 
 liquid which could not be described by witness. 
 
 Cited, 
 
 People V. Ryan, 86 App. Div. 524 
 
 People V. Page, 3 Park. (iOO 
 
 Violator of Excise Law need not be taken before a magistrate prior to 
 
 indictment. 
 
 Under Exi'ise Law of 1857 only licensed dealers could commit the offense 
 
 of selling liquor on Sunday. It was therefore necessary to aver this fact 
 
 in indictment. 
 
 Peo. ex rel. Bishop v. Palen, 74 Hun, 289 
 
 Test oath of excise commissioner under L. 1890, ch. 163, sec. 3, that he 
 is not interested in sale or manufacture of liquor is unconstitutional. 
 
 People V. Polhamus, 8 App. Div. 133 
 
 Exact time when liquor is charged to have been sold without license 
 need not be specified in information. Names of persons to whom sales 
 were made or statement that the names were unknown unnecessary where 
 informants' names were designated. It is within the discretion of the 
 Court to allow the reading of an affidavit to refresh memory of a witness. 
 Cited, 
 
 People v. Shaver, 37 App. Div. 21 
 
 People V. Putnam, 3 Park. Cr. 386 
 
 Right to jury trial scoured by constitution does not cover certain crimes 
 
Under Former Excise Laws Ixiii 
 
 which have already been punished summarily. But under Law of 1857 
 a person charged with being intoxicated in a public place is liable only 
 after indictment unless he elects to be tried before a magistrate. 
 Cited, 
 
 People V. Burleigh, 1 Crim. Rep. 522 
 
 People V. Austin, 49 Hun, 398 
 
 Peo. ex rel. Murray v. Justices, 74 N. Y. 406 
 
 Peo. ex rel. Comaford v. Dutcher, 83 N. T. 240 
 
 People V. Quant, 12 How. Pr. 83 
 
 Prohibitory Act of 1855 sustained, but notice reference to original 
 packages. 
 Cited, 
 
 Wynehamer v. People, 13 N. Y. 378 
 People V. Nyce, 34 Hun, 298 
 People V. Mcintosh, 5 N. Y. Cr. 38 
 
 Matter ot Lyman v. True Friends Social and Literary Circle, N. Y. L. J., 
 Dec. 7, 1897 
 
 People V. Eau, 63 N. Y. 277 
 
 L. 1857, ch. 628, sec. 21, as amended L. 1873, ch. 549, see. 5. Judicial 
 notice of intoxicating liquors. "As to such well known beverages as 
 whiskey, brandy, gin, ale and strong beer, the courts without proof, 
 acting upon their own Icnowledge derived from observation, will take 
 notice that they are intoxicating and will therefore require no proof 
 of the fact. But there are doubtless intoxicating beverages which are 
 not so well known and of whose character the courts could not take 
 notice, and more intoxicating beverages may yet be discovered. As to 
 all such, when one is charged with selling them in violation of law, 
 there must be proof that they are intoxicating before a conviction can 
 be had. Hitherto, the courts have not been willing to take notice that 
 lager beer is intoxicating, but have submitted the question, when con- 
 troverted, to the jury to be determined upon the evidence." 
 
 Cited, 
 
 Blatz T. Rohrbach, 116 N. Y. 450 
 People V. Schewe, 29 Hun, 122 
 Killip V. McKay, 13 N. Y. St Rep. 5 
 
 Peo. ex rel. Simermeyer v. Roosevelt, 1 App. Div. 434, affirmed, 151 N. Y. 675 
 
 See also, same case, 2 App. Div. 498. 
 
 Eemoval of police officer, charged with neglect of duty for not obeying 
 
 instructions of superior to follow every person seen entering a saloon. 
 Peo. ex rel. Simermeyer v. Roosevelt, 2 App. Div. 498 
 
 The testimony of a public officer who detects a violation of law does 
 
 not need corroboration. 
 
 Cited, 
 
 People V. Roosevelt, 5 App. Div. 330 
 Cullinan v. Trolley Club, 65 App. Div. 202 
 Cullinan v. Rorphuro, 93 App. Div. 203 
 
 People v. Ross, 17 Hun, 591 
 
 Sale of liquor to a minor in violation of L. 1857, ch. 628, sec. 15, as 
 amended by L. 1877, ch. 420. 
 
 Boy was given money and sent for whiskey by an adult to whom he 
 delivered as yet untouched by him the whiskey purchased of defendant. 
 
Ixiv JJiGEST OK Decisions 
 
 and by whom he was given some which caused intoxication. Held, to be 
 a sale to boy, who was not a m.]c agent or representative as defendant 
 cUiimed in an attempt to apply a principle of eommercual law to a 
 criminal caac. 
 
 People V. Safford, 5 Dcti. 112 
 
 The sale of liquors under direction and prescription of a licensed physi- 
 cian without proof that it was preseriliwl for medical purposes is un- 
 lawful. " The sale so far as respects the vendor must In; made in good 
 faith, (o enable the patient to follow the advice of his physician. A 
 mere sham prescription could be of no possible avail but to aggravate the 
 offense." 
 
 Cited, 
 
 Smith V. Joyce, 12 Barb. 21 
 
 People V. Schewe, 21) llun, 122 
 
 Wlicllier lager beer is intoxicating or not is for the jury to decide. It 
 is not improper U> ask a defendant whether his license has been previously 
 revoked for a violation of the I'^xeise Law. I'loeeedings to revoke a 
 license are in Uie nature of a trial and the accused is entitled to notice. 
 
 Gilfd, 
 
 Peo. ex rel. Welling V. Meakim, 56 Hun, 626 
 
 People V. Schwab, 4 I Inn, .520 
 
 Held, tlial L. IKnT, eh. 028, see. 15, though rendered inapplicable to 
 City of New ^'(irk liy L. 1800, cli. ;!78, was restored by L. 1870, ch. 175. 
 Under statute regulating sale of " strciug or spirituous liquor or wines," it 
 is unneeesKury for the prosecution to ])rm'e that the wine alleged to 
 have been sold was of intoxicating nature. " The law in plain terms 
 prohibited the sale of wine, etc. This included all wines used for 
 drinking." 
 
 Comments upon evidence of informer and the necessity therefor, held 
 not to withdraw decision and cdiitrol as to its credibility from the 
 
 jury- 
 
 Allegation in indielment as to place of sale at seller's place of business 
 in Ninth Ward, New York City, sufficient without stating number and 
 name of street. 
 Cited, 
 
 People V. Maxwell, 83 Hun, 157 
 
 People V. Mcintosh, 5 N. Y. Cr. 38 
 
 People V. Sergeant, 8 Cow. l:;!) 
 
 Paying for billiiird table by loser not gaming. Illegal gaming implies 
 gain and loss between the parties by betting, such as would excite a 
 spirit of cupidity. 
 Cited, 
 
 Peo. ex rel. Healey v. Forbes, 52 Hun, 30 
 People V. Harrison, 28 How. Pr. 247 
 People V. Shaver, 37 App. Div. 21 
 
 Under L. 1892 separate and distinct offenses of selling liquor without 
 a license e(]uld be set forth in the. information upon which a defendant 
 could be tried at Special Sessions. 
 
Under Former Excise Laws Ixv 
 
 Alternative sentence of imprisonment for non-payment of fine could also 
 be imposed. 
 People V. Shea, 3 Park. Ci'. 562 
 
 Whether offense is punishable both civilly and criminally under the same 
 statute is a question of legislative intent. 
 Cited, 
 
 Rollins V. Breed, 54 Hun, 485 
 
 People V. Sinell, 12 N. Y. Supp. 40, affirmed, 131 N. Y. 571 
 
 Upon prosecution for sale of liquor without license the defense was that 
 the liquors were the property of a social club, of which defendant was 
 the treasurer and his son the steward and that the liquors were furnished 
 by defendant and his son only to members of the club, and the money 
 paid by them therefor was received and used by defendant as treasurer, 
 to pay the expenses of the club. Jury found it was a fake club but 
 main defense was not sustainable even if this was not the fact. 
 
 Cited, 
 
 People V. Luhrs, 7 Misc. 503 
 People v. Adelphi Club, 149 N. Y. 5 
 
 People V. Sinell, 131 N. Y. 571, affirming 12 N. Y. Supp. 40 
 
 Under L. 1857, ch. 628, prohibiting sale without license, each sale con- 
 stitutes a separate offense and the acquittal of a defendant on a charge 
 of selling on and after a certain date is no bar to an indictment and 
 conviction for a sale made prior to the transactions to which the record 
 of acquittal relates. 
 
 People V. Smith, 1 Park. Cr. 583 
 
 State has a constitutional right not conflicting with that of congress to 
 impose duties upon liquors from foreign countries by requiring the pro- 
 curement of a license for their sale, whether retailed, peddled, auctioned,^ 
 etc. Principal criminally liable for act of clerk in selling liquors with 
 knowledge and authority. 
 
 People V. Smith, 9 Hun, 446, reversed, 69 N. Y. 175 
 
 L. 1870, ch. 175, declared to be the last emanation and expi-ession of 
 the legislative will in respect to the sale of intoxicating drinks and is 
 necessarily controlling, conclusive and exclusive upon the subject except 
 where it distinctly retains the old law, thereby repealing restrictive pro- 
 visions of L. 1857 and L. 1869 relative to sale of liquors to be drunk on 
 premises. 
 
 Cited, t 
 
 People v. Hartmann, 10 Hun, 602 
 
 People v. Smith, 69 K". Y. 175, reversing 9 Hun, 446 
 
 L. 1857, ch. 628, a general Excise Law, not repealed by L. 1870, ch. 175, 
 the principal purpose of which was to change excise boards from county 
 to city, town and village hoards. But, semble, that the provision of 
 1857 act requiring petition of twenty freeholders as a condition pre- 
 cedent of granting of innkeeper's license is repealed. License issued 
 under 1870, purporting to permit sale of liquors to be drunk on premises 
 no protection to person not also a tavern keeper. 
 Outlined history of regulations on traffic in liquor to be drunk on prem- 
 
]x\-i Dk.'ios'i- (II- I )i:cisio.\> 
 
 ises. K<.s(rirtion upon traflk- l.fUvcnn one and five o'clock in tlie morning 
 
 applies to all liceiiwil places, not bars only. 
 
 Cited, 
 
 Peo. ex rel. Brown v. Van Hoesen, 62 How. Pr. 70 
 
 Jefferson v. People, 101 N. Y. 19 
 
 Jefferson y. People, 28 Hun, 52 
 
 People V. Harfmann, 10 Hun, 602 
 
 Mundy V. Exci-se Commissioners, 9 Abb. N. C. 117 
 
 People V. Smith, 28 Hun. r.2(). alfinnrd. n-2 N. Y. 0(1.") 
 Purchaser of liquor is not accomplice. 
 Oiled, 
 
 People V. Emerson, 5 N. Y. Supp. 374 
 
 People V. Stevens, i:! Wend. .Ul 
 
 II is undoubtedly competent for the leyi-lature to subject any particular 
 offense, both to a penally and n criminal prosecution; it is not punishing 
 the same oifense twice; lliey are both ])arls of one punishment; they 
 both constitute the punislnneut which the law inflicts upon the offense. 
 That they are cnfuieed in dilTerent modes of proceeding and at different 
 timers dues not alfeet the principle. 
 
 Cltrd, 
 
 People V. GilklDson, 4 Park. 26 
 
 People V. Muakim, 133 N. Y. 224 
 
 Blatchley v. Moser, 15 Wend. 215 
 
 Behan v. People, 17 N. Y. 516 
 
 Hill V. People, 20 N. Y. 363 
 
 People V. Hislop, 77 N. Y. 331 
 
 Peo. ex rel. Hislop V. Cowles, 16 Hun, 577 
 
 Rollins V. Breed, 54 Hun, 485 
 
 Poo. ex rel. Meakim v. Eckman, 03 Hun, 209 
 
 People V. Shea, 3 Park. 562 
 
 Peo. ex rel. Martin v. Symonds, 4 Jlise. 6 
 
 While Excise I^aws of 18!t2 seem to recognize the existence of a local 
 option statute there was none in fact, and an Excise Board elected upon 
 ])li'di;es not to issue licenses have no right to refuse them arbitrarily 
 for tliat reason but mvist consider applications upon their merit. 
 cited, 
 
 Peo. ex rel. Davi.s v. Truman, 4 Misc. 247 
 
 Peo. ex rel. Hopkins v. Commissioners, 4 Misc. 330 
 
 Peo. ex rel. Deutsch v. Balton, 9 Misc. 247 
 
 Peo. ex rel. Muckle v. Board of Excise, 13 Misc. 537 
 
 People v. Tjghe, 5 Hun, 25 
 
 L. 1857, eh. 028, sees. 25-20. providing for revocation of license by 
 Special Sessions on show caiise order following a " conviction or iudg- 
 ment " either in a suit for a penalty or upon a bond, not superseded by 
 Ij. 1S73, eh. 540, sec. 4, but the latter act gives an additional remedy 
 so that " conviction " in a criminal court ipso facto revokes a defendant's 
 license and thereafter affords no protection. Violations of the law are 
 misdemeanors and courts are ii'quircd to instruct grand juries on the 
 suliject. 
 ailed. 
 
 People V. Meyi-rs, 9.T N. Y. 22:-! 
 
 Fincke v. Police ('"iniiiissioners, 66 How. Pr. SIS 
 
U.NDICU FoKMEU ExClSK LawS 
 
 People V. Tiphaine, 3 Park. Cr. 241 
 
 The Act of 1855 being vmconstitutional the previous Excise Law was left 
 in force, notwithstanding the clause in the Act repealing all previoua 
 inconsistent statutes. 
 People V. Townsey, 5 Den. 7U 
 
 Indictment under Act of 1845 for selling liquor without license valid 
 though it also alleged that the electors of the to\An had voted no license, 
 the latter averment being surplusage. 
 
 Adoption of local option does not repeal statute prohibiting sale of liquor 
 without license. Eepeal of statute without any saving clause extinguishes 
 offenses against it. 
 Cited, 
 
 Schwab V. People, 4 Hun, 520 
 
 Smith T. Joyce, 12 Barb. 21 
 
 Mayor v. Walker, 4 E. D. S. Rep. 258 
 
 People V. Toynbee, 20 Barb. 168, affirmed, 13 N. Y. 378 
 
 Intoxicating liquor is property, the sale of which may be restricted and 
 regulated but not prohibited. Certain portions of Prohibitory Act ot 
 1855 held unconstitutional. 
 Cited, 
 
 Wynehamer v. People, 20 Barb. 567 
 
 People V. Toynbee, 13 K. Y. 378, affirming 20 Barb. 168 
 
 The Prohibitory Act, L. 1855, did not discriminate between liquors exist- 
 ing and such as might thereafter be acquired by importation or manu- 
 facture, and does not eoimtenance or warrant any defense based upon 
 such distinction so it cannot be sustained in respect to any such liquor 
 whether existing or acquired subsequently, although it would be competent 
 to pass an act plainly prospective as to the property on which it should 
 operate. 
 
 The criminal proceeding in a court of special sessions authorized by 
 this act was unconstitutional, because the accused was deprived of his 
 right to trial by jury. 
 Cited, 
 
 People V. Krushaw, 31 How. Pr. 344 
 
 Peo. ex rel. Davis v. Truman, 4 Misc. 247 
 
 Held that excise commissioners elected because not favorable to license, 
 " have an undoubted right, relying upon their own judgment, supported 
 by a majority of legal voters, to refuse all licenses and thus establish in 
 fact, local prohibition under the law" of 1892. 
 
 CiteiJ, 
 Peo. ex rel. Watkins v. Excise Commissioners, 4 Misc. 547 
 Peo. ex rel. Wood v. Commissioners, 75 Hun, 227 
 
 People V. Utter, 44 Barb. 170 
 
 Criminal liability of principal for violations of bartender not established 
 by mere proof of sale by latter at former's place of business. Evidence 
 must snow that " defendant in some way participated in it, connived at 
 it or assented to it," which fact is one for the jury to determine. 
 Cited, 
 CuUinan v. Burkard, 41 Misc. 327 
 
Ixviii DiiiKsT oi'' Decisions 
 
 Peo. ex rel. Brown v. Van Hoesen, 6-! lluu. Pr. 7ii 
 
 Code of Civil Procedure relative to libeiUeH of jail did not repeal special 
 provisions of Excise Law in conllict therewith providing that persons 
 against whom body execution had been issued on judgment for penalties 
 should not have such liberties. 
 People V. Van Zant, 2 Park. Cr. 168 
 
 Selling liquor on Sunday not indictable at common law, nor under 2 E. S. 
 4th Ed. even by innkeepers to persons not guests. 
 People V. Vosburgh, 70 Hun, .'j(i2 
 
 The Excise Law of 1892 did not supersede by implication L. 1887, ch. 
 679, prohibiting sale of five gallons or more of liquor in any town, village 
 or city where retail licenses are not granted, because it did not furnish 
 any substitute or in any manner conflict with it. 
 Peo. ex rel. Decker v. Waters, 4 i\Iisc. 1 
 
 Under Excise Law of 1S!)2 applicants for licenses were required to possess 
 oertain qualifications. When these conditions precedent were found to 
 exist excise commissioners were required to consider the application and 
 such other facts as they deemed pertinent. Then in the exercise of their 
 discretion they granted or denied the application. In certiorari proceed- 
 ings under L. 189:!, ch. 4S1, the courts may not examine the facts and 
 having reached a dilTercnt conclusion from the excise board command 
 the board to issue a license. 
 Cited, 
 Martin v. Symonds, 4 Misc. 6 
 Peo. ex rel. Davis v. Truman, 4 Misc. 247 
 Peo. ex rel. Watkins v. Excise Commissioners, 4 Misc. 547 
 Peo. ex rel. Deutscli v. Dalton, 9 Misc. 247 
 Matter of Schonmaker, 15 Misc. 648 
 In re Bloomlngdale, 38 N. Y. Supp. 162 
 
 Peo. ex rel. Brooks v. Watts, 7.3 Hun, 404 
 
 " Requirement that test oath of excise commissioner be taken ' before 
 an officer duly authorized to take the acknowledgment of deeds' was 
 directory and did not prevent its being taken before any officer autlhorized 
 to administer oaths." 
 
 Peo. ex rel. Cochrane v. Wells, 11 Misc. 239 
 
 When excise commissioners act upon an application for the transfer 
 of a license but thereafter and before performing the ministerial act of 
 issuing the permit discover certain protests on file previously over- 
 looked they have no power to reconsider the application and deny it. 
 
 People V. Wheelock, 3 Park. Cr. 9 
 
 What "beer" is "strong and spirituous liquor." Immaterial variance 
 between proof and indictment as to kind of "beer." 
 Cited, 
 
 Board ot Commissioners v. Taylor, 21 N. Y. 173 
 Rau V. People, 63 N. Y. 277 
 Blatz v. Rohrbach, 116 N. Y. 450 
 Klllip v. McKay, 13 N. Y. St. Rpp. 5 
 
 Peo. ex rel. Gillane v. Woodman, 5 St. R. 318 
 
 Excise commissioners cannot refuse a license because a part of the build- 
 ing is used some part of the time as a place of public amusement. 
 
Under Formeh I']xcise Laws Ixix 
 
 Peo. ex rel. Kruse v. Woodman, 1 K. Y. Supp. 335 
 
 Under L. 1886, ch. 496, mandamus rather than certiorari is the remedy 
 to review the refusal of excise commissioners to grant a license. Issues 
 of fact on the alternative writ may be tried before a jury, though finally 
 disregarded by justice determining the proceeding. 
 
 Peo. ex rel. Kruse v. Woodman, 4 N. Y. Supp. 554, af/irnicd, 123 N. Y'^. 634 
 Verdict ot jury on issue as to parties to be interested in license should 
 not be disregarded on application for mandamus to compel excise com- 
 missioners to issue a license. Declarations of a party alleged to be 
 interested inadmissible, unless made in applicant's presence, with his 
 knowledge or by his agent. 
 
 Peo. ex rel. McGoldrick v. Woodman, 3 N". Y'. Supp. 926 
 
 License revoked for unlawful sale of liquor to a minor by bartender. 
 Under L. 1857, ch. 628, " there was no clause prohibiting in so many 
 words the sale of liquor to a minor by the wife, servant, employee or 
 other agent of a licensee, though it is by no means certain that the 
 maxim 'qui facit per alium facit per se,' would not apply here just 
 as clearly as in ordinary eases of agency." But under L. 1877, ch. 420, 
 which expressly prohibits such sales, then all doubt is removed. 
 
 Peo. ex rel. Matthews v. Woodman, 4 X. Y'. Supp. 532 
 
 Under L. 1873, a license in force was forfeited ipso facto upon conviction 
 of bartender though the violation was committed while the license for 
 the preceding year was in force. Upon such conviction the excise com- 
 missioners were acting properly and within their duty when they de- 
 manded the return of such license and subsequently actually took it 
 away from the licensed premises. 
 
 People v. Worsley, 1 N. Y. Supp. 748 
 
 Excise commissioners were convicted because they issued hotel license 
 to person without ascertaining whether he kept a hotel in the legal 
 sense of that term. 
 
 Peo. ex rel. Seller v. Wright, 3 Hun, 306 
 
 Certiorari to review proceedings under L. 1873, ch. 549, sec. 8, before 
 excise commissioners of Delhi, Delaware county, to revoke license issued 
 under L. 1869, ch. 856, sec. 4, after passage of above statute amending 
 L. 1857. Defendant held not to be entitled to trial by jury. " The 
 license was merely a permit given to the relator under which he was 
 authorized to sell ale or beer. It did not give him any property or 
 vested right to enjoy the privileges thereof, beyond the time when the 
 board should become satisfied that he had violated any of the provisions 
 of the acts of 1857, 1869, 1870 or 1873." 
 
 Cited, 
 Peo. ex rel. Connelly v. Murray, .38 N. Y. Supp. 177 
 Peo. ex rel. Welling v. Meakim, 56 Hun, 626 
 Peo. ex rel. Funke v. Board o£ Excise, 24 Hun, 195 
 People V. Schewe, 29 Hun, 122 
 In re Bloomingdale, 38 N. Y. Supp. 162 
 
 Matter of Lyman v. Erie County Athletic Club, 46 App. Dlv. 387 
 Matter o£ Lyman y. Texter, 59 App. Div. 217 
 People V. Wynehamer, 20 Barb. 567, reversed, 13' N. Y. 378 
 
 Prohibitory Act of 1855 held constitutional upon similar reasoning to 
 that in People v. Berberrich, 20 Barb. 224. 
 
Ixx |)m:h.st cu- Deciskjnk 
 
 People V. Wynehamer, 13 N. Y. .ITfS, ic^cising 20 Barb. 507 
 
 The Prohibitory Act, L. 1855, p. 340, was unconstitutional because it 
 operated upon and dcslrojcd property existing in the hands of citizens 
 when the act took effect. 
 
 Intoxicating liquor is property though of a kind which may not be 
 beneficial. All property is equally sacred in view of the constitution. 
 " However difficult it may be to define with accuracy and precision the 
 line of separation, there is a broad and perfectly intelligible distinction 
 between what is plainly regulation on the one side and what is plainly 
 prohibition on the other." 
 Cited, 
 
 People V. Krushaw, 31 How. Pr. 344 
 
 Peo. ex rel. Killeen v. Baird, 11 Hun, 289 
 
 People V. Lyon, 27 Hun, 180 
 
 Peo. ex rel. Watkins v. Excise Commissioners, 4 Misc. 547 
 
 Metropolitan Board of Excise v. Barrie, 34 N. Y. 657 
 
 Bertholt v. O'Reilly. 74 N. Y. 509 
 
 Leicht V. Board of Excise, 19 N. Y. Supp. 1 
 
 Peo. ex rel. Laughran v. Flynn, 48 Mi.sc, 159 • 
 
 People V. Zeiger, 6 Park. Cr. 355 
 
 " Lager beer " falls within the term " intoxicating liquors " if the use 
 of it is ordinarily or commonly attended with entire or partial intoxi- 
 cation and whether such is the fact is to be decided by the jury. 
 Perry v. Edwards, 44 X. Y. 223 
 
 In a penalty action, for sale to minor, under L. 1857, the burden is 
 on plaintiff to show defendant knew or had reason to know minority of 
 purchaser. 
 Perry v. Tynen, 22 Barb. 137 
 
 Penalty action by two overseers of town cannot be discontinued by one 
 without consent or concurrence of the other. 
 Cited, 
 Board of Excise v. Sackrider, 35 N. Y. 154 
 Potter V. Deyo, 19 Wend. 301 
 
 Whether aefendant has a license or not is a matter peculiarly within his 
 knowledge and the burden lay upon him to establish it. 
 There are many cases where a party is not bound to prove all that he 
 is required to allege in pleading. 
 Cited, 
 
 People V. Bradley, 11 N. Y. Supp. 594 
 Mayor v. Mason, 4 B. D. S. Rep. 142 
 People V. Briggs, 114 N. Y. 63 
 People V. Nyce, 34 Hun, 298 
 
 Peo. ex rel. Stevenson Brewing Co. v. Lyman, 67 App. Div. 447 
 Prussia v. Guenther, 16 Abb. N. C. 230 
 
 Where plaintiff alleges his official capacity, court will take judicial notice 
 of his right to sue. 
 
 In civil action plaintiff not held to as strict proof as to date of offense 
 as upon trial under indictment. " Sunsmile " which evidence showed was 
 either plain or diluted whiskey. 
 Lager beer also |>i„ven to be intoxicatimr. 
 
Undee Former Excise Laws 
 
 Quain v. Russell, 8 Hun, 319 
 
 Civil damage suit held to be maintainable by a wife because her husband 
 became intoxicated and spent his money upon which she relied for support. 
 Cited, 
 Quain v. Russell, 12 Hun, 376 
 Volans T. Owen, 9 Hun, 558 
 Mead v. Stratton, 87 N. Y. 493 
 Aldrich v. Sager, 9 Hun, 537 
 Moriarty v. Bartlett, 34 Hun, 272 
 
 Quain v. Kussell, 12 Him, 376 
 
 Civil damage suit upon complaint held to be good, 8 Hun, 319. Injurj' to 
 " means of support " • where wife was in destitute circumstances and in 
 want of food and fuel as a result of the debauch and of injuries to her 
 husband who supported the family solely by cultivating a small patch 
 of ground and labor performed for others. 
 Cited, 
 Davis V. Standish, 26 Hun, 608 
 
 Quinlan v. Conlin, 13 Misc. 568 
 
 Injunction will not lie to prevent police interference with sale of soft 
 drinks on Sunday at licensed premises after liquors have been removed. 
 If laws are onerous, relief rests in legislative wisdom and not in judicial 
 discretion. The policy of the State is expressed in the laws made by 
 the representatives of the people and the courts must see that these laws 
 are enforced. 
 
 Quinlan v. Welch, 69 Hun, 584, affirmed, Ul N. Y. 158 
 
 Posthumous child may recover under Civil Damage Act. 
 
 Quinlan v. Welch, 141 N. Y. 158, affirming 69 Hun, 584 
 
 Civil Damage Act not a penal statute, but simply creates a cause of action 
 vmknown at common law. It is not repealed by Excise Law of 1892, 
 ch. 403, which should be considered as amendatory of Civil Damage Act, 
 so that a cause of action which arose prior to such amendment was 
 not affected. Plaintiff was a posthumous child. 
 Cited, 
 Snyder v. Launt, 1 App. Div. 142 
 
 Rawlins v. Vidvard, 34 Hun, 205 
 
 Civil damage suit where wife was injured in means of support as a result 
 of her husband's intoxication at a hotel owned but not conducted by 
 defendant. Award of jury in excess of actual damages to warrant which 
 no aggravating circumstances were shown. Held, that only a new cause 
 of action was created not a new measure of damages. That " the per- 
 son against whom exemplary damages are allowed must be connected with 
 and in some way responsible for the aggravating circumstances that 
 authorize the award," e. g., against the owner of premises who leases 
 them to a tenant knowing that he kept a disorderly place, or sold without 
 a license or to minors or habitual drunkards. 
 
 Cited, 
 Reid V. Terwilliger, 116 N. Y. 530 
 Reld V. Terwilliger, 42 Hun, 310 
 Ketchani v. Pox, 52 Hun, 284 
 
Ixxii Digest (jf Decisions 
 
 Reid V. Tetwilliger, 42 ]liiii, 310, in-cisvd, llfi N. Y. 530 
 
 C'i\il damage suit. Exemplary damages recoverable against landlord 
 siu'd jointly with tenant even if not when sued alone. 
 Cited, 
 Ketcham v. Fox, 52 Hun, 284 
 
 Reid V. Terwilliger, IIG X. Y. 530, reversing i'Z Hun, 310 
 
 Exemplary damages under Civil Damage Act, L. 1873, ch. 646. 
 Cited, 
 Lawson V. Bggleston, 28 App. Div. 52 
 Bacon V. Jacobs, 63 Hun, 51 
 Wilbur V. Dwyer, 69 Hun, 507 
 
 Reinhardt v. Fritzsche, 69 Hun, 5(i5 
 
 Civil Damage Act is not a penal statute— L. 1873, ch. 646, not repealed, 
 though modified by L. 1802, eh. 401. 
 Cited, 
 Quinlan v. Welch, 69 Hun, 584 
 
 Ring V. Gibbs, 2(i Wend. .".02 
 
 Obligor on bond not allowed to object that it does not conform to the 
 statute because broader. 
 died, 
 Supervisors v. Pindar, 3 Lans. 8 
 Peo. ex rel. Meakim v. Eckman, 63 Hun, 215 
 
 Ripley v. Little, 19 Wkly. Dig;, liiri 
 
 Defendant was sued for penalties due for sales without license. Sales 
 proven to have been made in defendant's building, but complete defense 
 established by proof that for two years defendant's son had been sole 
 in\ner of the goods and the business and that defendant had no interest 
 in them at the time sales were made. 
 
 Ripley v. McCann, 34 Hun, 112 
 
 Cuunsel for appellant strenuously contends that the proof failed to show 
 that the eider sold by the defendant came within the prohibition of the 
 Ivxeise Law. The witness ^^'ilson testified that the cider which he bought 
 <if defendant and of which he dranlc several glasses, intoxicated him. 
 That was enough to bring the ease Avithin the rule laid down in the 
 lliiard of Commissioners of j:)xeise of Tompkins Co. v. Taylor, 21 X. Y. 
 177, which has been followed in several subseqvient decisions. As the 
 eider was sliown to have contained enough of the inebriating element, 
 when taken into the human stomach, to produce intoxication, the sale of 
 it in quantities less than five gallons, without a license, rendered the 
 vendor liable under sec. 13 (L.lSfiT). The fact that other witnesses 
 called \\ere not intoxicated by the beverage which they bought of the 
 defendant about the same time is immaterial. There is no evidence that 
 the liquor sold to them was of the same kind and character as that sold 
 to ^Yilson. 
 
 Rollins V. Breed, 54 Hun, 4Sri 
 
 Criminal prosecution not a bar to civil action either under Game Law 
 or Excise Law. 
 
 Root V. Alexander, 63 Hun, 557, affirmed. 142 N. Y. 663 
 
 Demand liavin^ been made on overseer of poor action v.as brought by 
 
Under Former Excise Laws Ixxiii 
 
 citizens at expiration of ten days in name of new overseer who hail 
 succeeded to the office. 
 
 Rouse V. CatskiU & N. Y. Steamboat Co., 59 Hun, 80 
 
 " Building or premises " defined. Steamboat in navigation is neither, 
 under Civil Damage Act. 
 
 Rubenstein v. Kahn, 5 Jlisc. 408 
 
 A license is a personal privilege but the right of sale and transfer subject 
 to the approval of the excise board is given by the Excise Law of 1892 
 and the purchase price is recoverable. 
 
 St Thomas's Church v. Board of Excise, 20 N. Y. Supp. 831 
 
 Construction of Excise Law of 1892 relative to traffic near church. 
 Statute contemplates " principal " entrance to saloon or room not the 
 principal entrance to the building in which it is situated, because statute 
 reads, " between the principal entrances of buildings used for such church 
 or school purposes and the place for which an application for a license 
 has been made." 
 
 Sanderson v. Goodrich, 46 Barb. 016 
 
 The defendant contracted with the tenant of plaintiff's hotel, leasing the 
 bar and the right to traffic under tenant's license — at the same time 
 giving his note to plaintiff in part payment of rent. 
 Held, not to be enforceable because illegal. 
 
 Secor V. Taylor, 41 Hun, 123 
 
 In civil damage suit by an infant child against one from whom the 
 mother had already recovered damages on account of the same wrongful 
 acts, proof that the child has received money from the mother for support 
 is competent but the source of it is immaterial where exemplary damages 
 have not been asked or awarded. 
 
 Sharp V. Falicher, 29 Hun, 193 
 
 A person bringing a penalty action in the name of overseers of poor under 
 L. 1857 and L. 1873, ch. 820, may be required to give security for costs 
 under Code of Civil Procedure, sec. 3271. 
 
 died, 
 Montgomery v. Odell, 73 Hun, 424 
 
 Sharpley v. Brown, 43 Hun, 374 
 
 Proof of wife's second marriage competent on question as to degree in 
 which she had been injured in her moans of support. 
 
 Smith V. Joyce, 12 Barb. 21 
 
 In a civil action for liquors sold on credit which 1 R. S. 680 prohibits 
 with certain exceptions in favor of licensed tavern keepers between party 
 and party for liquors sold and delivered — the question of plaintiff's 
 license and his right to sell liquors arises collaterally — and a license 
 is to be presumed until some evidence is given to the contrary. In an 
 indictment for sale without license it is the main issue on the part of the 
 defendant; the prosecutor proves the sale and the defendant produces 
 his license, if he has one. 
 
 Cited, 
 People V. Brady, 11 N. Y. Supp. 594 
 People V. Mcintosh, 5 N. Y. Cr. 38 
 Matter of Lyman v. True Friends Social Circle, N. Y. L. J., Dec. 7, 1897 
 
Jjjxiv J)ltiEST OF J)KCIS10NS 
 
 Smith V. Reynolds, 8 Hun, 128 , , j , ^ 
 
 Civil damage suit. Employer's civil liability for bartenders acts. 
 Proper refusal to " charge the jury that if they found from the evidence 
 that the liquor alleged to have been delivered to deceased was delivered 
 by defendant's bartender without the knowledge of the defendants, and 
 after the defendants had directed him not to sell or give away any 
 liquor to the deceased, then the plaintiff cannot recover as requested by 
 the defendant's counsel." 
 
 Cited. 
 Volans V. Owen, 9 Hun, 558 
 Mead V. Stratton, 87 N. Y. 493 
 Austin V. Carswell, 67 Hun, 579 
 Cullinan v. Burkard, 93 App. Div. 36 
 
 Snyder v. Launt, 1 App. Div. 142 
 
 After enactment of L. 1892, ch. 403, amendatory and supplementary to 
 Civil Damage Act, it was necessary to give notice not only to licensees 
 but to persons in no-liccnse towns before they could be held liable. 
 
 Standart v. Burtis, 46 Hun, 82 
 
 Abuse of discretionary power in excise board in settling for a nominal 
 sum a substantial judgment, good and collectible against the party who 
 had sold liquor without license. 
 
 Cited, 
 Olp V. Leddick, 14 N. Y. Supp. 41 
 
 Stevens v. Cheney, 36 Hun, 1 
 
 To recover damages under Civil Damage Act for injuries to a son of age, 
 a father must either show that the son was poor and dependent on him 
 for support or else that he himself was dependent on the son. 
 
 Cited, 
 Sharpley v. Brown, 43 Hun, 374 
 DuPuy V. Cook, 90 Hun, 43 
 
 Streever v. Birch, 02 Hun, 298 
 
 Plaintiff not injured in his property under Civil Damage Act because 
 a boy with whom he was under contract to care for in return for services 
 rendered was frozen to death while intoxicated. 
 Supervisors v. Pindar, 3 Lans. 8 
 
 Liability of county treasurer under his bond. Bond valid though not 
 in strict and technical conformity to statute. 
 Cited, 
 Pec. ex rel. Meakim v. Bckman, 63 Hun, 215 
 
 Sutter ex rel. Reeve v. Fauble, 25 Hun, 195 
 
 In towns where there was no overseer of the poor, citizens could not sue 
 in the name of an excise board whose duty it was to prosecute because 
 sec. 30 of eh. 628, L. ISfiT, as amended by L. 1873, ch. 820, permitting 
 such suits in place of such overseers was not amended to correspond 
 with the provisions of sec. 22 of ch. 028, L. of 1857, as amended by 
 L. 1873, ch. 820, and L. 1878, ch. 109, providing for excise boards where 
 there were no overseers. 
 
Under Former Excise Laws Ixxv 
 
 Tanner v. Albion, 5 Hill, 121 
 
 Bowling alley kept for hire is a public nuisance at common law. 
 Cited, 
 Peo. ex rel. Healey v. Forbes, 52 Hun, 30 
 
 Thayer v. Lewis, 4 Den. 269 
 
 Suit for penalties. " It should be known who it is that prosecutes the 
 suit, to the end that he may be held answerable as the real plaintiff 
 in the action." 
 
 Cited, 
 Montgomery v. Odell, 73 Hun, 424 
 Hess V. Appell, 62 How. Pr. 314 
 
 Toub V. Schmidt, 60 Hun, 409 
 
 " One who is not to be entertained and who has not adopted the inn as 
 a temporary home, is not a guest." 
 
 Trustees of Clintonville v. Keeting, 4 Denio, 341 
 
 Persons to whom licenses are issued by town ofBcers are protected from 
 penalties inflicted by the Excise Law, but inasmuch as village trustees 
 have power to regulate the sale of liquors, their permission is also re- 
 quired or liability to penalties fixed by them is incurred. 
 
 Cited, 
 Smith v. Joyce, 12 Barb. 21 
 
 Turck V. Richmond, 13 Barb. 533 
 
 Suit upon promissory note, consideration being liquor sold without 
 license. 
 
 Vallance v. Evarts, 3 Barb. 553 
 
 Penalty action for sale of liquors. Held, fact of sale could be established 
 by circumstantial evidence. 
 
 Vallance v. King, 3 Barb. 548 
 
 Penalty under 1 E. S. 680, provisions of which were held not to be 
 repealed by L. 1845, p. 322. 
 
 Recovery under charge that defendant was liable if he sold liquor or 
 permitted others to sell it for his benefit, upheld. 
 
 Village of Cohoes v. Moran, 25 How. Pr. 385 
 
 Village Law imposing penalty for selling liquor on Sunday not in con- 
 flict with subsequent general law of 1857 imposing different penalty 
 for selling liquor without license or to be drunk on premises. 
 
 Cited, 
 Village of Gloversville v. Howell, 7 Hun, 345 
 
 Village of Cortland v. Howard, 1 App. Div. 131 
 
 Complaint in penalty action charging unlawful sale of liquor without 
 charging that the same was without license and in less quantity than 
 five gallons or to be drunk on premises if quantity was greater. 
 . Phrases " unlawful '' and " contrary to law " not an averment of all 
 omitted facts necessary to complete a charge, because they are conclusions 
 of law, not of fact. 
 
 Cited, 
 People v. Polhamus, 8 App. Div. 133 
 Lyman v. Plymouth Social Club, June, 1898, unreported 
 
Ixxvi l>i(jit:sT ov Decisions 
 
 Village of Deposit v. Devereux, S Hun, 317 
 
 Provisions of village charter " a special act " relative to disposition of 
 excise moneys not repealed by L. 1874, ch. 444. 
 
 Village of Deposit v. Vail, 5 Hun, 310 
 
 Penalty action under village charter, L. 1873, ch. 330, for sale of "Mish- 
 ler's Bitters " before a police justice. Held, that the justice had juris- 
 diction thereunder and that action was properly brought by village 
 instead of by overseers of poor, pursuant to L. 1873, ch. 820, Avhich did 
 not by implication repeal the former. 
 
 Gited, 
 Village of Gloversville v. Howell, 70 N. Y. 287 
 Village of Gloversville v. Howell, 7 Hun, 345 
 Village of Deposit v. Devereux, 8 Hun, 317 
 
 Village of Gloversville v. Howell, 7 Hun, 345, affirmed, 70 N. Y. 287 
 
 Special excise provisions in charter not repealed by general statute of 
 L. 1874, ch. 444, giving overseers of poor right of action instead of the 
 village; not violative of constitution prohibiting private or local bills 
 having more than one subject, that one being expressed in its title. 
 Local option privileges delegated by legislature to village sustainable. 
 Gited, 
 Village of Deposit v. Devereux, 8 Hun, 317 
 
 Village of Gloversville v. Howell, 70 N. Y. 287, affirming 7 Hun, 345 
 
 L. 1873, ch. 820, does not affect village charter enacted since L. 1857, 
 ch. 628, regarding commencement of penalty actions; nor are latter 
 abrogated by L. 1874, ch. 444. 
 
 The charter is not unconstitutional because its title did not refer to 
 excise provisions nor because it authorizes local option, making the opera- 
 tion of the law dependent upon a vote of the people. 
 Gited, 
 Peo. ex rel. Watkins v. Excise Commissioners, 4 Misc. 547 
 
 Village of Port Richmond v. County of Richmond, 11 App. Div. 217 
 
 Diversion of excise moneys under L. 1892, ch. 401, and L. 1892, ch. 404. 
 The county treasurer became custodian and agent for distribution of 
 excise moneys. Where latter uses same for other purposes, the locality 
 entitled to receive same may maintain action against the county. 
 Gited, 
 Peo. ex rel. Jones v. N. Y. Homeopatliic Hospital, 20 N. Y. Supp. 379 
 
 Village of Rome v. Knox, 14 How. Pr. 268 
 
 The Act of 1855, being unconstitutional, penalties imposed under previous 
 excise laws are not in force and the traffic in liquor was free as at com- 
 mon law. 
 
 A discussion of the reason why people are favorable to or oppose license 
 laws. 
 Volans V. Owen, 9 Hun, 558, reversed. 74 K. Y. 520 
 
 Civil damage suit by father on account of son's intoxication causing him 
 expense and loss of services. Held, that the loss of services which son 
 has been accustomed to render and the necessary charges brought upon 
 him by the son's illness, injured his means of support. 
 Gited, 
 Aldrich V. Sager, 9 Hun, 537 
 
Under Former Excise Laws Ixxvii 
 
 Volans V. Owen, 74 X. Y. 520, reccrsing 9 Hun, 558 
 
 Liability, etc., under Civil Damage Act not dependent upon the commis- 
 sion of an injury for which by existing laws a remedy by action exists, 
 because a new cause of action is created. Where however injury to 
 means of support is the gravamen of the action, mere diminution of 
 income or loss of property occasioned by son's illness and loss of his 
 services, does not constitute injury to means of support^ unless such 
 services were necessary so that the plaintiff's accustomed means of main- 
 tenance have been cut off or curtailed. 
 
 Cited, 
 Streever v. Birch, 62 Hun, 298 
 McCarty v. Wells, 51 Hun, 171 
 Sharpley v. Brown, 43 Hun, 374 
 Beers v. Walhizer, 43 Hun, 254 
 Reid v. Terwilliger, 42 Hun, 310 
 Stevens v. Cheney, 36 Hun, 1 
 Moriarty v. Bartlett, 34 Hun, 272 
 Hill V. Berry, 75 N. Y. 229 
 Mead v. Stratton, 87 N. Y. 493 
 Blatz v. Rohrbach, 116 N. Y. 450 
 Reid v. Terwilliger, 116 N. Y. 530 
 Quinlan v. Welch, 141 N. Y. 158 
 Bacon V. Jacohs, 63 Hun, 51 
 Reinhardt v. Fritzsche, 69 Hun, 565 
 Bennett v. Levi, 19 N. Y. Supp. 226 
 
 Wilbur V. Dwyer, 69 Hun, 507 
 
 Exemplary damages not allowable upon proof of bare fact that defendant 
 sold liquor which caused or partly caused intoxication, without proof of 
 additional facts. 
 Cited, 
 Lawson v. Eggleston, 28 App. Div. 52 
 
 Willard v. Rhinehardt, 2 E. V. S. 148 
 
 Distinction between boarding house and inn is that in former the guest 
 is under express contract, at a certain rate, for a certain period of time, 
 but in an inn there is no express agreement, the guest being on his 
 way is entertained from day to day according to his business on an im- 
 plied contract. 
 Cited, 
 Cady V. McDowell, 1 Lans. 484 
 
 Wood V. City of Brooklyn, 14 Barb. 425 
 
 A municipal ordinance prohibiting the sale of liquors on Sunday is void, 
 so far as it relates to sales by innkeepers, who by general statutes 
 (1 R. S. 676, sec. 72) and licenses issued thereunder are permitted to 
 make such sales to lodgers and lawful travelers. 
 Cited, 
 Matter of Breslin, 45 Hun, 210 
 City of Brooklyn v. Toynbee, 31 Barb. 282 
 People V. Toynbee, 20 Barb. 212 
 
 Woodhaven Junction Land Co. v. Solly, 148 N. Y. 42 
 
 When violation of restrictions against use of premises for liquor traffic 
 insufficient to warrant injunction by vendor. 
 
DlCjKS'l' OF I)1C(.'I.SIIJ.\S 
 
 Wright V. Smith, 13 ]!aiij. 414 
 
 Repeal of Act of 1845 by Act of 1847 did not work discontinuance of 
 suits for penalties thereunder or discharge defendants from liability 
 therefor. 
 
 Overseers of poor, whose terms of office have expired, may not by stipula- 
 tion discontinue suits commenced in their name. 
 
 Their successors in office assume such suits as their own and become liable 
 for services of the attorney previously retained. 
 
DECISIONS 
 
 RELATING TO THE 
 
 LIQUOR TAX LAW 
 
 First Appellate Department, April, 1896. Reported. 4 App. Div. 185. 
 
 The People of the State of New York ex rel. Fred G. Eins- 
 FELD^ Appellant^ v. Joseph Murray and Others, Commis- 
 sioners of Excise of the City of New York, Eespondents. 
 
 Liquor Tax Law of 1896, constitutional — The justice of the law im- 
 material upon the question of its constitutionality — It is not a tax 
 law, but merely designed to regulate the liquor traffic — An exercise 
 of the police power — A tax need not be uniform, nor the punishment 
 — It does not appropriate public moneys and a two-thirds vote was 
 unnecessary — The classification of cities was not improper — It need 
 not be submitted to mayors of cities for approval. 
 
 On March 23, 1896, one Fred G. Einsfeld applied to the commissioners 
 of excise of the city of New York for a license to sell wines and liquors 
 at retail for a period of one year; the application was rejected upon the 
 ground that, under the provisions of chapter 112 of the Laws of 1896, 
 known as the "Liquor Tax Law," the commissioners could not grant a 
 license for a term expiring later than April 30, 1896, and this ground of 
 refusal was stated in substance in the return made to a writ of certiorari 
 obtained by Einsfeld for the purpose of reviewing the determination of 
 the excise commissioners. 
 
 Held, that the Liquor Tax Law was constitutional; 
 
 That the constitutionality of a law was not to be determined by the fact 
 that the law was unjust, unwise, oppressive or odious; 
 
 That the law in question, although denominated "The Liquor Tax Law," 
 was not a tax law, but one, the purpose and intent of which was to 
 regulate the traffic in liquors throughout the State, and to provide for 
 local option; 
 
 That the fact that the act was not primarily designed to raise revenue 
 was apparent from this local option feature; 
 
 That any taxation under the law was a mere incident to the regulation 
 of the traffic in liquor; 
 
Decisions I.'ulatjxc to 
 
 That the regulation of the traffic in liquors was peculiarly within the 
 police power of the State, which was not impaired by the fourteenth 
 amendment to the Constitution of the United States; 
 
 That In the regulation of such traffic the Legislature had a right to 
 recognize local differences and needs, and to impose taxes not uniform 
 throughout the State; 
 
 That the want of uniformity of punishment for a violation of the penal 
 provisions of the act did not render it unconstitutional, as an offense 
 punishable under a general law might be so punished with more severity 
 in one part of the State than in another, and that an act might constitute 
 a penal offense in one part of the State which was not punishable in 
 another ; 
 
 That the law did not violate section 20 of article 3 of the State Con- 
 stitution providing that the assent of two-thirds of the members elected 
 to both branches of the Legislature should be requisite to every bill 
 appropriating public moneys or property for local or private purposes; 
 
 That the two-third share of the taxes collected, which by the terms of 
 section 13 of the act belong to the town or city In which the traffic was 
 carried on from which the revenues were received, were not public 
 moneys within the meaning of the Constitution; 
 
 That from the beginning the two-thirds of the proceeds of the tax, 
 belonging to the town or city, were kept apart in ownership, and they 
 were not made moneys of the State simply because they were collected 
 by the machinery of the State; 
 
 That the act was not unconstitutional because it classified cities in a 
 different way from that contemplated by section 2 of article 12 of the 
 State Constitution, as that section had reference only to laws relating to 
 the property, affairs or government of cities and did not apply to a 
 general law which regulated the liquor traffic throughout the whole State; 
 
 That the only provision in the law which could be said to relate to the 
 government of a city, separate and distinct from the general provisions 
 relating to the government of the State, was that which- abolished the 
 existing excise commissioners throughout the State, which was a matter 
 of State and not of municipal governmental policy, in which general plan 
 no one city or town had any more interest than any other- 
 
 That as the law was not a special city law relating to cities of the first 
 class, and as it did not relate to the government or property or affairs 
 of a particular city, there was no reason why the law should have been 
 submitted to the mayors of the cities of the first class. 
 
 Appeal by the relator, Fred G. Einsfeld, from a judgment of 
 the Supreme Court in I'avor of the respondents, entered in the 
 otQce of the clerk of the cfumty of New York on the 2Gth day 
 of IMarch, 1896, upon the decision of the court rendered after 
 a trial at the New York Special Term, and also from an order 
 entered in said clerk's ofiice on the 2(!th day of March, 1896, 
 dismissing a writ of certiorari granted on the 24th day of 
 March, 1896. 
 
LiQUOE Tax Law 
 
 J. H. Choate, 8. TJntermyer, Louis Marshall and Ashhel P. 
 Fitch, for the appellant. 
 
 Theodore E. Hancock, Attorney-General, and Julius M. 
 Mayer, for the respondents. 
 
 Patterson. J. : On the 23d of March, 1896, the relator made 
 application to the respondents, commissioners of excise of the city 
 of New York, for a license to sell wines and liquors at retail in cer- 
 tain designated premises in that city for a period of one year. The 
 commissioners rejected the application and refused to grant tne 
 license on tlie sole ground of the want of power, arising from the 
 passage of an act of the Legislature, approved March 23, 1896, 
 known as ''The Liquor Tax Law," under the provisions of which 
 they alleged they could not grant the relator a license for a term 
 expiring later than April 30, 1896. Thereupon application was 
 made to the Supreme Court for a writ of certiorari to review 
 the action of the commissioners, which being granted, the re- 
 spondents made return setting forth their proceedings, and 
 stating in substance the ground of their refusal, as above men- 
 tioned. On the coming in of the return the relator contended 
 before the court that the refusal of the respondents to grant the 
 license applied for was based upon an untenable ground, for the 
 reason that the act approved March 23, 1896 (Chap. 112 of the 
 Laws of 1896) is unconstitutional and void, and, as a conse- 
 quence, the license laws in operation immediately before its pas- 
 sage remained in force and effect. It was held by the court at 
 Special Term that the act of 1896 is valid, and was passed in 
 conformity with the Constitution of the United States and of the 
 State of New York, and that the writ must be dismissed. From 
 the order and what is called a judgment embodying that decision 
 this appeal is taken. 
 
 The subject presented for our consideration on the appeal is 
 that of the constitutionality of the law in question. It has been 
 severely arraigned in argument as offending against justice and 
 reason. It may be as unjust, unwise, oppressive and odious as 
 the relator claims, but all that does not help in the solution of 
 the question before us, and we have no opinion to express on that 
 subject. The final word concerning it has been spoken by the 
 Court of Appeals. In Bertholf v. O'Reilly (74 N. Y. 516) it is 
 said : "No law can be pronounced invalid for the reason simply 
 that it violates our notions of justice, is oppressive and unfair in 
 
DiorisKJNs Relating to 
 
 its operation, or because in tlie opinion of some m- all of the 
 citizens of the State it is not justified by public necessity or 
 designed to promote the public welfare. We repeat, if it violates 
 no constitutional provision it is valid and must be obeyed. The 
 remedy for unjust or umvise legislation, not obnoxious to con- 
 stitutional objections, is to be found in a change by the people 
 of their representati\'es according to the methods provided by 
 the Constitution." 
 
 Much of the argument against the validity of this law pro- 
 ceeds upon the assumption that it is fundamentally and radically 
 a tax law. That being conceded, many of the contentions of the 
 learned counsel for the relator might prevail. If the sole or the 
 main purpose of the enactment is merely to raise revenue bj 
 taxation for State purposes, there are features contained in this 
 bill of inequality and diversity in the imposition of taxes and 
 the infliction of penalties that might well lead to its complete 
 condemnation. Although there is no express provision in the 
 Constitution of the State of New York to that effect, yet it may 
 be that taxes to be valid must be uniform ; that were it otherwise, 
 the property of the citizen subjected to the arbitrary imposition 
 of a discriminating tax might be practically confiscated and. 
 therefore, taken without due process of law, or persons of the 
 same class might be deprived of the equal protection of the laws 
 secured by the Constitution of the United States. The power of 
 the State to tax may be limitless in extent, but ought not to be 
 exercised, among those similarly situated, unequally and to the 
 advantage of some and the detriment of others. But these and 
 kindred suggestions seem to have no real place in the discussion 
 connected with the particular enactment now before us. Al 
 though by its short title it is called "The Liquor Tax Law," and 
 although it designates the money paid for the privilege of deal 
 ing or trading in liquors in quantities of less than five gallons a 
 tax, yet the whole scope, purpose and intent of the law is, as its 
 fuller title expresses, "An act in relation to the traftic in liquors 
 and for the taxation and regulation of the same and to provide 
 for local option." The body of the act conforms to the objects 
 stated in the title. A system regulating the traffic in and 
 through the State is created and instituted. It is primarily and 
 essentially an exercise of the police power of the State over a 
 particular trade or business which from early times has been 
 made the subject of State legislation, the general history and 
 
Liquor Tax Law 
 
 drift of which may be found, by those interested in the matter, 
 in the opinion of Judge "Wright in tlie important case of The 
 Metropolitan Board of Excise v. Barrie ('.ii Is. Y. 657). That 
 such excise legislation is peculiarly within the police power is 
 recognized by all courts of authority and it would seem no longer 
 open to dispute. (See the authorities collected in note, 11 Am 
 & Eng. Ency. of Law, 583.) 
 
 The fourteenth amendment to the Constitution of the United 
 States does not impair the police power of the State. (Jluglcr v, 
 Kansas, 123 U. S. 623; Powell v. Pennsylcania, 127 id. 678; Bar 
 hier v. Connolly, 113 id. 27.) 
 
 It is within the competency of the State to inter-lict all traiBc in 
 liquors within its boundaries. That is admitted. The Legislature 
 having such an extreme power may exercise the lesser one of 
 regulating the trafiBc. It may make such regulations and put 
 such trammels upon the traffic as seem to be expedient 
 or necessary to the safety, the welfare or the protection of 
 the people. {Bertholf v. O'Reilly, supra.) In undertaking to do 
 so by the enactment of a general law, which shall control the 
 whole traflSc in each and every part of the State, it may recognize 
 local differences and needs, and make special provision therefor 
 If diversity arises therefrom in the application to particular 
 localities of any of the incidents of the law, the Legislature is not 
 incompetent to authorize that diversity. It is part of the general 
 scheme. It arises from the necessity of treating local conditions 
 and situations as they are found, and from the recognition of 
 patent facts, such as that there are striking differences between 
 the retail traffic in liquor in a great metropolis and in a remote 
 rural neighborhood, or even in separate parts' of the same 
 municipality, and that disproportion must of necessity be allowed 
 in the impost exacted for the privilege of engaging in such traffic 
 in each of such places. All such provisions come within the one 
 general act as parts of one general excise system and the regula- 
 tion thereof. 
 
 That the purpose of the act is not primarily to raise revenue 
 from taxation is apparent from other considerations. Leaving 
 out of the discussion altogether the pertinent question whether 
 such taxes as those imposed by the act under consideration are in 
 reality anything more than license fees, and confining ourselves 
 to what is deducible from the structure and provisions of the act 
 itself, we find that a third and conspicuous and all-important 
 
C DeCISKiNK ItlorjATlNG TO 
 
 matter is provided for, and that is the local option feature, which 
 plays so prominent a part in the legislation that it is made one 
 of the cardinal elements proclaimed in the title of the act. The 
 system created and established by this act is by the express terms 
 thereof made to supersede and take the place of all prior existing 
 excise laws or systems throughout the whole State. It establishes 
 an entirely new system, bringing under State control that which 
 was theretofore under local, municipal or community jurisdictions 
 and administrations. The right to traflSc in liquor is not limited 
 to individuals, except so far as certain disqualifications are 
 designated in the act ; but no one is permitted to sell at retail or 
 (leal in liquor in less than certain quantities without State per- 
 mission first obtained, to be evidenced by the possession of a 
 certificate which takes the place of a license, and for which dues 
 called taxes are to be paid. Taxation is but an incident, but 
 one and that not the chief, although a necessary element of the 
 legislation. Regulation of the traffic is the fundamental purpose 
 of the law. The taxes are not levied upon persons nor upon 
 property, for a license is not property excejit in a qualified sense, 
 and as it is made so by the terms or operation of a statute, and 
 the taxes are, and are declared to be, "c.rci.^c taxes upon the 
 hiisincss of trafficking in liquors," and hence a mere incident to 
 the regulation of that business. It is all within the police power 
 of the State, exercised for the supposed general welfare, and the 
 power to regulate must of necessity include the power to license 
 or tax. Nor does the want of uniformity of punishment for the 
 violation of the penal provisions of the act render it unconstitu- 
 tional. The same offense, punishable under a general law, may be 
 so punished with more severity in one part of the State than in 
 another. (WiUiams v. The People, 24 N. Y. 405; Matter of Bayard. 
 25 Hun, 540), and that may constitute a penal ofllense in one part 
 of the State that is not punishable in another. (People v. Havnor. 
 1 App. Div. 4.^)9; affd., 149 N. Y. 196.) 
 
 Regarding, as we do, this act as one constituting inherently and 
 essentially an exercise of the police power of the State, we are 
 brought to the consideration of the particular objections taken to 
 it as violating the provisions of the Ponstitution of the State of 
 New York. 
 
 Firsl. The position is taken by the relaior that the law is 
 unconstitutional, because it violates section 20 of article 3 of the 
 Constilution of the State, which pi-ovides that the assent of two- 
 
Liquor Tax Law 
 
 thirds of the members elected to both branches of the Legislature 
 shall be requisite to every bill appro]iriating the public moneys oi 
 property for local or private purposes. The act of 1896 was 
 passed by a three-fifths vote only. 
 
 In section 13 of the act it is provided that all taxes, fines and 
 penalties (except those imposed upon or gathered from the 
 traffic in liquors on railroad cars, steamboats, etc.), under 
 the act "in counties containing a city of the first class 
 shall be collected by and paid to the special deputy com- 
 missioner for such county, and in all other counties to 
 the county treasurer of the county in wliich the traffic is 
 carried on," and "one-third of the revenue resulting from taxes, 
 fines and penalties under' the provisions of this act, less the 
 amount allowed for collecting the same, shall be paid by the 
 county treasurer, and by the seceral special deputy commis- 
 sioners, within ten days from the receipt thereof, to the treasurer 
 of the State of New York, to the credit of the general fund, as 
 a part of the general tax revenue of the State, and shall be ap- 
 propriated to the payment of the current general expenses of the 
 State, and the remaining two-thirds thereof, less the amount 
 allowed for collecting the same, shall helong to the town or city 
 in which the traffic was carried on from which the revenues were 
 received, and shall be paid by the county treasurer of such 
 county and by the special deputy commissioners to the supervisor 
 of such town, or to the treasurer or fiscal officer of such city, and 
 such revenues shall be appropriated and expended by such town 
 or city in such manner as is now, or may hereafter be, provided 
 by law." The real question in connection with this contention 
 of the relator is, whether the two-thirds of the product mentioned 
 above is public money within the meaning of the Constitution. 
 We think clearly it is not. The public moneys and 
 property therein mentioned and referred to are those belonging 
 to the State. Prohibited appropriation is of such moneys only. 
 In The Board of Supervisors v. Allen (99 N. Y. 532) it waa 
 claimed that chapter 213 of the Laws of 1879, relating to certain 
 county treasurers and their compensation, was unconstitutional, 
 because it appropriated public moneys for local purposes ; but it 
 was held that the act did not apply, because the appropriation 
 was not of State moneys. The accuracy of the definition of 
 "public money," as that belonging to the State, can scarcely be 
 doubted. It seems to us indisputable that the two-thirds of the 
 
DECISION'S .Relating to 
 
 net proceeds of the taxes, fines and penalties referred to in the 
 13th section of the act under consideration cannot be regarded 
 in any sense as State moneys. They are not so designated in the 
 act. On the contrary, they are expressly and specifically declared 
 to "belong to the town or city in which the traffic was carried 
 on." The anterior rights of localities as theretofore existing were 
 done away with. The act, with regard to the two-thirds of the 
 revenue, simply recognizes that there were such rights, and pro- 
 fesses to provide anew for them with some measure of justice. 
 It thus declares that some part, at least, of that which the local- 
 ities had been accustomed to receive directly, shall come to 
 them and be theirs. That is not an appropriation of the moneys 
 of the State, but a devotion to the component parts of the State 
 of what was esteemed to be tlieir just shares of the product of a 
 particular revenue. At no period of time do the two-thirds be- 
 long to the State. From the beginning they are separated, and 
 the State share and the share of the town or city are kept apart 
 in ownership. There seemed to have been scrupulous care taken 
 in constituting and maintaining that separate ownership. The 
 two-thirds part does not become money of the State simply be- 
 cause the State's agent collects it through, and by means of, the 
 State machinery. The mere method of the collection or realiza- 
 tion of the amounts of the taxes, fines and penalties cannot gov- 
 ern the matter, and, hence, we conclude that the two-thirds re- 
 ferred to, not being State money, the constitutional provision 
 does not apply. 
 
 Second. It is further objected by the relator that the act 
 under consideration classifies cities in a different way than the 
 Constitution does, and that for that reason it violates section 2 
 of article 12 of the Constitution. This objection proceeds, we 
 think, upon a misapprehension of the object of that section. 
 The circumstances which led up to the adoption of it are wei) 
 known. It had not been unusual for laws to be passed seriously 
 affecting the local interests and property of cities without notice 
 to the authorities of such cities, and without any opportunity for 
 them or the inhabitants to be heard upon the subject. That had 
 grown to be a great cryini; evil, and the provision of the Con 
 stitution was intended to remedy it. But it must be noticed 
 that the classification has reference only to laws relating to the 
 properly, affairs or goveinment of cities, and it is only with 
 reference to that kind of laws that the classification is effectual 
 
Liquor Tax Law 
 
 or materiiiL The act of 1896, in question, is not one tliat can 
 be said to relate to eitlier of those things. As we have before 
 stated, it is a general law in the fullest sense of that word, having 
 regard to the regulation of the liquor traftic throughout the whole 
 State, and contains such particular provisions with reference to 
 special localities as the conditions of those localities seem to re- 
 quire. In no sense does it relate to the property, affairs or govern 
 ment of the city. It is purely a matter of State government, and 
 is a general law upon that subject, and is not, as we think, at all 
 within the provisions of the Constitution. A provision in a 
 general law can not be said to be a special city law simply because 
 it makes some provision with regard to the inhabitants of the city 
 different from that established for other portions of the State, 
 unless it contains something relating to the government of the 
 city separate and distinct from the general provision relating to 
 the government of the State. This law contains no such provision. 
 The nearest approach to one is that it abolishes the existing excise 
 commissioners ; but that abolition results from the total extinction 
 of an entire excise system and the creation of another and different 
 one — one including the whole State and embracini; in a single 
 scheme everything necessary to the establishment and operation 
 of a complete system, even to the varying details required by 
 different conditions in different localities. Every existing excise 
 board or commission throughout the whole State is abolished. It 
 is no more a special city law because it abolishes the office of 
 excise commissioner of the city of New York than would be a 
 law abolishing the office of coroner. No one city or town is 
 interested in the general plan more than any other. It is a 
 matter of State, and not of municipal, governmental policy, and 
 it could never have been contemplated that the voice of cities or 
 municipal bodies, as such, should be made potential in legislation 
 of a general character applying to the State as a whole, and not 
 specifically or exclusively affecting the interests, property or 
 internal government affairs of a municipality. 
 
 Third. The further contention is made that the law should 
 have been submitted to the mayors of cities of the first class as 
 provided by the section of the Constitution above referred to 
 Much of what we have said with reference to the objection last 
 considered applies equally to this, and it is unnecessary to repeat 
 it. The law is not a special city law as to cities of the first class ; 
 it does not relate to the government, property or affairs of a 
 
10 Jti;(_'isio.\s Relating to 
 
 particulai- city, and \\'as not such a measure as, under the 
 Constitution, should ha\e been submitted in the manner claimed 
 by the rehitor's counsel. 
 
 The order and final adjudication appealed from must be 
 affirmed, with costs. 
 
 Van IJruxt, P. J., Barrett, Rumsey and Williams, JJ., con- 
 curred. 
 
 Order and final adjudication affirmed with costs. 
 
 Supreme Court, New York Special Term, April, 1896. Reported. 17 IVlisc. 1. 
 
 The I'eovle cx rel. Benjamin Bassett v. The Warden of the 
 
 City Prison. 
 
 Excise — Liquor Tax Law — Free lunch. 
 
 Section 31 of chapter 112, Laws of 1896, known as the Liquor Tax Law, 
 prohibiting the sale of liquor in certain cases, and the giving away of food 
 to be eaten on the premises, took effect immediately, and is operative as 
 to persons holding licenses under the old Excise Law. 
 
 Habeas Corpus. 
 
 kSamuel Untermyer, for relator. 
 
 John F. Mclutyre, for respondent. 
 
 Beekman, J. The relator seeks to be discharged on habeas 
 corpus from imprisonment under a commitment made by a city 
 magistrate for a violation of subdivision "E"' of section 31 of 
 chapter 112 of the La« s of 1896, commonly called the Raines law, 
 on the ground that he gave away food to be eaten on certain 
 premises wliere liquor was .sold. The relator has demurred to 
 the return, and challenges the validity of the commitment on the 
 ground that the section in question, at the time of the alleged 
 offense, was not operative in respect to persons holding licenses 
 under the old Excise Law, within which class it is admitted that 
 the relator comes. If, thereCore, the construction of the law for 
 which he contends is sound, it must follow that the commitment 
 IS void, and that he should be discliarged from arrest. 
 
 The act in question was, undoubtedly, intended to be a com- 
 plete embodiment of the policy of the State in respect to the 
 regulation of the liquor traffic, and to express all of the condi- 
 
Liquor Tax Law 1L 
 
 tious which the legishiture considered necessary or desirable by 
 way of limitation in order to safeguard the public interests. The 
 enactment rests for its validity upon the police power of the 
 State which the courts of this State have sustained in its rela- 
 tion to this traffic, to the extent even of absolute prohibition. 
 {Wynehamer v. People, 13 N. Y. 378; Bertholf v. O'Reilly, 74 id. 
 509-20.) Having the power to prohibit, the legislature may im- 
 pose any conditions it sees fit upon its exercise, and is the sole 
 judge of the reasonableness of any restriction which it may deem 
 proper to impose. Whether, therefore, the prohibition against 
 the giving away of food where liquor is sold is reasonable or not 
 does not come within the field of judicial inquiry. The difficulty 
 in determining whether this particular prohibition is operative 
 in respect to the class of licensees to which the relator belongs 
 grows out of what seem to be, upon tlieir face, coutiadictory or 
 inconsistent provisions of the statute. Section 31 provides as 
 follows: "It shall not be lawful for any corporation, association, 
 copartnership or person which, or who, has not paid a l.ix as 
 provided in section 11 of this act, and obtained and posted the 
 liquor tax certificate, as provided in this act, to sell, offer or 
 expose for sale, or give away liquors * * '■ in any quantity 
 whatever, any part of which is to be drunk on the premises 
 of such vendor, or in any outbuilding, booth, yard or garden 
 appertaining thereto or connected therewith. It shall not be 
 lawful for any corporation, association, copartnership or person, 
 whether having paid such tax or not, to sell, offer or expose for 
 sale or give away any liquor: A. On Sunday * * * or E. To 
 sell or expose for sale, or have on the premises where liquor is 
 sold, any liquor which is adulterated with any deleterious drug, 
 substance or liquid which is poisonous or injurious to health; or 
 to give away any food to be eaten on such premises.' 
 
 Taking this section by itself, the meaning is perfectly plain. 
 The traffic in liquor is absolutely prohibited to all persons who 
 have not paid the tax and obtained the certificate for which 
 section 11 provides; and even then certain restrictions are im- 
 posed, limiting the business in respect to time, place and mannCk', 
 which are intended to be unconditioned in their operation. The 
 prohibition is absolute in terms, and would have been sufficient 
 without the assertion "whether having paid such tax or not," Et 
 phrase which was evidently employed to give special emphasis to 
 the expression of a purpose that under no circumstances should 
 
12 Dkcimions Kelatixg to 
 
 the giving away oL' I'ood be assoeialeil with the sale of liquor in 
 the same place. As section 45 pi-ovidc^s that tliis act shall take 
 effeet immediately, there would, ot eoiirse, he no difficulty in 
 holding that this pi-ohibition was immediately operative, and had 
 been violated by the relator, were it not for certain other pro- 
 visions oi the statute, which will presently be referred to. 
 
 In enacting a la^^' which was intended to put into operation an 
 entirely new system, the legislature was confronted with the 
 fact that au enormous trailic in liquor existed in the State, 
 authorized by licenses granted by commissioners of excise under 
 the authority of and subject to restrictions and regulations con- 
 tained in existing statutes. The new system demanded the ap- 
 pointment and qualification of a large number of new officers, 
 and the organization o( their work before the tax could be re- 
 ceived and the certificate issued, wliich was essential to legalize 
 the traffic. It was necessary, therefore, that the act should go 
 into effect immediately, so far, at least, as the administrative 
 portions of it were concerned. At the same time it was also 
 evident that considerable time would have to elapse before the 
 organization would be complete, and that unless some temporary 
 provision should be made for the continuance of the traffic, the 
 whole business wcuild be abruptly suspended to the ruin of 
 thousands engage(l in it, and the inconvenience and privation of 
 a large proportion of the people. Furthermore, justice de- 
 manded that a reasonalile time should be afforded to those whose 
 fortunes were embarked in the trade to prepare for the impend- 
 ing change in the ronditions under which it could be conducted, 
 an<l to take sikIi steps as prudence might suggest to minimize 
 inevitable loss. Under the influence, doubtless, of these con- 
 siderations, the following provisions were inserted in the law: 
 
 l!y section three it is provided that from and after the 30th 
 day of April, IsiiCi, all boards of excise in the State are abolished, 
 and that the rights, duties and powers of all boards of excise, 
 and of all commissioners of excise, and of the clei-ks and all 
 other employees shall cease and terminate from that date; also 
 that no licenses to sell liquor should be granted, after the pas- 
 sage of the act, by any such board of excise to extend beyond the 
 :;(ith day of A\n-U, 1896, and that the fee for such license to so 
 expire shall be in proportion to the fee for one year. Section four 
 provides as follows: "h]very license heretofore lawfully granted 
 by a board of excise which is valid when this act takes effect, 
 
LiQuoK Tax Law 13 
 
 shall be and remain valid for the term I'or which it was granted, 
 except as herein provided, unless sooner canceled under tne pro- 
 \isions of the law under which it was granted, and the rights and 
 liabilities of the holder thereof during such term shall be gov- 
 erned by the laws in force immediately prior to the taking effect 
 of this act, except as otherwise expressly i)rovided in this act, 
 but such license shall cease, determine and be void from and 
 after the 30th day of June, 1896 ; and the tax herein provided to 
 be assessed shall not be levied or collected upon the business of 
 any corporation, association, copartnership or person holding an 
 unexpired license until the time lawfully fixed for the expiration 
 of such license, or its termination as herein provided unless such 
 license be sooner canceled." 
 
 In a subsequent section the powers and duties of boards of 
 excise in respect to the prosecution of violations of pre-existing 
 laws and the transfer, surrender and revocation of licenses are 
 vested in the special deputy commissioners to be appointed under 
 the act for the period intervening between the 30th day of April, 
 1896, when such boards are abolished, and the SOtli day of June, 
 1896, when all licenses are terminated. 
 
 The prohibition, therefore, which the first paragraph or section 
 31 contains, forbidding any traflic in liquor without previous 
 payment of the tax for which the statute provides, is necessarily 
 subject to these special provisions, which in continuing existing 
 licenses and authorizing new ones to be issued up to the 30th 
 day of .Vpril, 1896, sanction the traffic under the old system until 
 the license has terminated as provided in the act. Until that 
 time arrives, the holder of a license transacts the business which 
 it authorizes pursuant to the laws in force at the time of the 
 passage of the act in question, and "his rights and liabilities," in 
 respect thereto, are governed by such laws. While the Avords 
 "rights and liabilities" seem to express, in a general way, all the 
 privileges which the licensee enjoyed, and every penalty to which 
 he was subject, under those laws, the important qualification is 
 added "except as otherwise expressly provided in this act." 
 
 It is here that the divergence of views logically commences in 
 respect to the scope of the prohibitory regulations contained in 
 section 31, which forbids, among other things, the giving away 
 of food on premises where liquor is sold. It is claimed, on behalf 
 of the relator, that no such restriction or prohibition existed in 
 the former laws; that the holder of a license at the time the new 
 
H^ DlOCISIONS Kl'XATING TO 
 
 law WU8 i.i.Hsed enjoyed the right to do the act thus prohibited, 
 and that until his liceusc is terminated he is, therefore, authorized 
 to continue to do so by f.n'ce of the guaranty above referred to. 
 It is also eluiiued that the clause ^'except as otherwise expressly 
 provided by this act" refers to the change of jurisdiction from 
 boards of excise to special deputy commissioners of i;xcise, who, 
 by section 9, are to exercise the jiowers and perform the duties of 
 the former in respect to the transfer, surrender or revocation of 
 any license, and the prosecution of offenses for violations of law 
 under any law existing immediately prior to the passage of the 
 
 act. 
 
 But this construction is altogether too narrow, and arbitrarily 
 puts a limit upon the operation of an exception which, I think, 
 was intended to cover all provisions of the statute which are 
 inconsistent with or vary from pre-existing law, and which, under 
 the system, are snsceptible of immediate enforcement without 
 disturbance of the general plan of the statute. In fact, in no 
 other way can due clVect be given to the mandate that the act 
 shall take effect immediately. This view is strongly reinforced by 
 section 44 of the act, which jirovides as follows: 
 
 "§44. Laws, granis and charters repealed; saving clause.— 
 The provisions of any special or local law, grant or charter in 
 conflict with this act are hereby rei)caled and annulled. Of the 
 laws enumeiated in the schedule hereto annexed, that portion 
 specified in the last column is repealed, but the provisions of any 
 such relating to the transfer, cancellation or revocation of a 
 license, the collection of penalties or prosecutions for the violation 
 of the law, shall continue in force as to any license which has not 
 expired at the time this act takesetlect, until the expiration thereof, 
 subject to the provisions (if lliis act in relation to the performance 
 of the duties of hoards of excise or excise commissioners by 
 special deputies or special agents designated by the State Com- 
 missioner of Excise. The repeal (if any law by this act shall not 
 revive a law repealed thereby, but such repeal shall not impair 
 any act done or right accruing, accrued or acquired, or liability, 
 penalty, forfeiture or punishment incurred prior to the time this 
 act takes effect, under or liy virtue of any law so repealed, and 
 the same may be .a.sserted, enforced, prosecuted or inflicted as 
 fully, and to the same extent, as if such law had not been repealed. 
 All actions and jiroccedings, civil or criminal, commenced under 
 or by virtue of a law so repealed, and pending immediately prior 
 
Liquor Tax Law 15 
 
 to the taking efl'ect of this act, may be prosecuted aind defended 
 to tiual effect in the same manner as they might have been under 
 the laws then existing, subject to the provisions of this act 
 authorizing special deputy commissioners or special agents 
 designated by the State Commissioner of Excise to perform the 
 duties of boards of excise." 
 
 The schedule referred to in the section includes, and thus 
 appa^'ently repeals, the entire law under which the liquor traffic 
 was conducted and regulated before the passage of the act, with 
 the following exceptions: 1. The provisions relating to the 
 transfer, cancellation or revocation of a license. 2. The collection 
 of penalties or prosecutions for the violation of the law, in respect 
 to any license which had not expired, until the expiration thereof. 
 Taken in connection with the provisions of sections 3 and 4 of the 
 act, which recognize the continuance of such licenses after the 
 passage of the act and which declare that "the rights and lia- 
 bilities" of the holder of such licenses, during such term, "shall be 
 governed by the laws in force immediately prior to the taking 
 effect of this act, except as otherwise expressly provided in this 
 act," it must be confessed that the salving clause of the repealing 
 section is unfortunately narrow and most inartiflcially expressed. 
 It is, however, in this condition, a very strong indication of an 
 intention that the sanction given by section 4 to the continued 
 traffic, under licenses issued under the old law, is not to be 
 extended beyond what the necessities of the case may reasonably 
 require. 
 
 Under the former la,w the license expressed the class of traffic 
 which the licensee was permitted to carry on, and, while 
 prohibitory regulations, in many respects similar to those which 
 are embraced in section 31 of the present act, are there found, 
 they are appropriately stated as regulations of an already licensed 
 traffic. The rights, then, which are reserved to existing licensees 
 under the present law are those which are conferred in and by 
 the license, to be exercised according to the license, and also the 
 quasi property attributes with which the statute has to some 
 extent invested the license itself in respect to its transfer; while 
 the liabilities under the old law which are continued are those 
 which are immediately associaited with misconduct in respect to 
 that which has thus been reserved, or which has not been obviously 
 replaced by some express provision of the later law. The saving 
 of rights under the license does not necessarily include freedom 
 
IC DECISIONS Relating to 
 
 from iuiy other prohibitory regulnlions than those which ur.i 
 contained in the lornicr l:iw. Such regulations were not 
 ex[tre.s.se(l in the grunt of the jtrivilegc or a.s u pail of the license, 
 but are distinct wlatutoiy regulations alfecting the manner in 
 which the privilege already conferred shall be used. If it be 
 claimed that this construction is narrow or close, the answer seems 
 to be that such a construction is necessary, and, therefore, 
 legitimate, in order to give due weight to every portion of the act, 
 and proper effect to the general inlent of the legislature which 
 the law as a whole appears to disclose. 
 
 In this view ol' the matter it may fairly be held that what the 
 legislature has seen fit iu this act to declare shall not be done 
 by those employed in the liquor traffic was intended to, and, 
 therefore, doe^;, extend to all who are thus engaged, under what- 
 ever I'orin of authority. The ])ioliibili<ius contained in section .31 
 with which we lia\c Ix'en dealing are also supposed to he founded 
 upon considerations of the public welfare, and, unless an inten- 
 tion to the contrary is obvious, should be held to ai)])ly to every 
 case coming within tlie terms of the definition. In addition lo 
 this, a consl ruction of a law should always be avoided, if pos- 
 sible, which, all oiher lliings being equal, makes it lawful for 
 one, but unlawlul for another, to do jirecisely the same thing. 
 If the construction asked for b,\ tlie counsel for the relator should 
 be adojileil, this siii;;ulai- and certainly most undesirable condi- 
 tion would exist, that between the 1st day of May and the 1st 
 day of July, ISOU, during wJiich li((uor dealers in this city will 
 be lawfully engaged in the business, some under the old licenses 
 and others under the new liquor tax certificates, it would be 
 lawful for the former to sell between 12 and 1 o'clock on Monday 
 tnoining, to maintain shades and screens before their windows 
 and to give away food, while it would be unlawful and criminal 
 for the latter to do the same things. It is not reasonable to 
 suppose that the legislature intended to sanction a condition 
 so grotesque as this, or so mischievf)us in the contempt for the 
 law which it would naturally inspire. While it was the purpose 
 of the act to protect lliose who were engaged in the traffic at 
 the time it was jiassed, it certainly was not intended to give them 
 any such exclusive privileges. 
 
 I am thus led to the conclusion that the provisions of section 
 31 are now in force, and that the relator was properly committed 
 by the magistrate before whom he was arraigned. The lack of 
 
LiQuoE Tax Law 17 
 
 precision of statement and of proper co-ordination of the dif- 
 ferent provisions of the statute with each other renders the task 
 of construing it a difficult one, and the margin for differences 
 of opinion as to its meaning is, therefore, a wide one. I think 
 hoAvever, that the interpretation which I have given it is more 
 consonant with the spirit of the law and its general intent, and 
 should, therefore, be adopted. 
 
 The writ is dismissed and the prisoner remanded. 
 
 ^A^rit dismissed and prisoner remanded. 
 
 City Court of Yonkers, May, 1896. Unreported. 
 People v. Patrick Dooling. 
 
 Kellogg^ J. By section 35 of the Liquor Tax Law, all pro- 
 ceedings, except as otherwise provided by said law, instituted for 
 the punishment of any violation of the provisions of the Liquor 
 Tax Act, the penalties for which are prescribed in section 34, 
 shall be prosecuted by indictment by the grand jury of the county 
 in which the crime was committed, and by trial in a court of 
 record having jurisdiction for the trial of crimes of the grade of 
 a felony, except that a magistrate may issue a warrant of arrest 
 upon the information and depositions, and examine the case as 
 now provided by law. 
 
 Was the act alleged in the complaint now before me a violation 
 of the provisions of the Liquor Tax Law? I think it was. The 
 Liquor Tax Law went into effect March 23, 1896, at 11 :30 a. m. 
 By subdivision G, section :J1 thereof, it is made unlawful for a 
 person, whether having paid a tax or not, to have any door 
 unlocked from the street to the room or rooms where any liquors 
 are sold or offered for sale during the hours when the sale of 
 liquors is forbidden, except when necessary for the egress or 
 ingress of the person or members of his family for the purposes 
 not forbidden by this act. 
 
 The complaint alleges that the door leading to the place of the 
 license where liquors are sold or kept for sale was unlocked from 
 Main street, in Yonkers, on Sunday, April 26, 1896. Since this 
 is alleged to have occurred on Sunday, it occurred during the 
 hours when the sale of liquor is forbidden by the act, and was, 
 2 
 
IS Dix'i.sicjNS Kelatixg to 
 
 therel'ore, a violation oi' one of the provisions of the Liquor Tax 
 Law. 
 
 It now remains to be considered how shall the defendant be 
 tried; that is, as heretofore, in the Court of Special Sessions, 
 with or without a petit jury, or in a manner set forth in section 
 35 of the Liquor Tax iict — to wit, by examination before the 
 committing magistrate. I think by the latter method. To be 
 sure, section 4 of the Liquor Tax Law says, among other things : 
 "The rights and liabilities of the holder thereof (that is, of the 
 license now in force under the old law) during the term of such 
 license shall be governed by the laws in force immediately prior 
 to the taking effect of this Liquor Tax Act, except as otherwise 
 expressly provided in the act." 
 
 I hold that this applies exclusively to his rights and liabilities 
 so far as affected by the old License Law; and does not mean 
 that, if such licensee violates any provision of the present act, 
 redress for such violation must be governed by the old Excise 
 Law under which he is a licensee, but that redress for the viola- 
 tion of the above-mentioned or any provision of the Liquor Tax 
 Act by the licensee under the old Excise Law must be had after 
 the manner set forth in section 3.") of the said Liquor Tax Act 
 — to wit, by examination of the defendant, and the finding or 
 not finding of sufficient cause to believe the person or persons 
 charged with such crime guilty thereof. 
 
 Court of Appeals. Reported. 149 N. Y. 367. 
 
 The People of the State of Xew York ex rel. Fred G. Eins- 
 FELD, Appellant, v. Joseph Murray et al., Commissioners of 
 Excise of the City of Xew York, Respondents. 
 
 1. Constitutionality of the Liquor Tax Law of 1896 — Appropriation of 
 excise moneys to localities — Not a two-thirds bill — Constitution, 
 Art. Ill, §20. 
 
 The provision of the Liquor Tax Law of 1S96 (Chap. 112, § 13), which 
 declares that two-thirds of the excise taxes collected thereunder shall 
 belong to the town or city in which the traffic was carried on from which 
 the revenues were received, is in accordance with an uninterrupted 
 understanding that the legislature may devote excise moneys to the uses 
 of the localities in which they are collected, by majority bill, and did not 
 render the bill for the law subject to the requirement of the Constitution 
 
Liquor Tax Law 19 
 
 (Art. Ill, § 20) that "the assent of two-thirds of the members elected to 
 each branch of the legislature shall be requisite to every bill appropri- 
 ating the public moneys or property for local or private purposes." 
 
 2. Not a "Tax Law." 
 
 Chapter 112 of the Laws of 1896, known as the Liquor Tax Law, is not 
 a "tax law," in the proper sense, as it does not have for its primary 
 purpose the raising of revenue for the support of the government; but 
 it is a law enacted under the police power, the exactions of which, 
 although denominated taxes, are imposed for the primary purpose of 
 regulating and controlling the liquor traffic. 
 
 3. Not a "City Law" — Classification of cities — Constitution, Art. XII, §2. 
 The Liquor Tax Law of 1896, being a general State excise law, with 
 
 such special provisions and adaptations to localities as to the Legislature 
 seemed proper, is neither a general or special "city law," nor does it 
 relate to the "property, affairs or government of cities," within the mean- 
 ing of the Constitution (Art. XII, § 2), and hence Is not invalidated by the 
 fact that, in fixing the excise taxes upon the business of trafficking in 
 liquors, it (§ 11) graduates them in cities according to population, not 
 following the classification of cities fixed by the Constitution. 
 
 4. Bill not submitted to mayors of cities — Constitution, Art. XII, §2. 
 The Liquor Tax Law of 1896, not being a "special city law," within 
 
 the meaning of the Constitution (Art. XII, § 2), the bUl therefor was not 
 required to be submitted to the mayors of the cities affected thereby, 
 before its final enactment. 
 People ex rel. Einsfeld v. Murray, 4 App. Div. 185, affirmed. 
 
 (Argued April 30, 1896; decided May 26, 1896.) 
 
 Appeal from judgment of the Appellate division of the 
 Supreme Court In the first judicial department, entered April 25, 
 1896, which affirmed a judgment entered upon a decision of the 
 court at Special Term, dismissing a writ of certiorari brought 
 by the relator to review the action of the board of excise of the 
 city of New York in refusing to grant his application for a 
 license to sell strong and spirituous liquors upon the sole ground 
 that by the terms of the Liquor Tax Law (Chap. 112, Laws of 
 1896) there was no power in the board to issue a license for a 
 term expiring later than April 30, 1896. 
 
 Joseph H. Choate, Samuel JJntermyer, Louis Mar shall and 
 Ashhel P. Fitch for appellant. The act under consideration is 
 a taxing law, as distinguished from an act licensing the 
 liquor traffic. {Adler v. Whitheck, 44 Ohio St. 539; Anderson v. 
 Brewster, 44 Ohio St. .570; YoungUood v. Sexton, 32 Mich. 460; 
 
I'O Dhcisioxs Kiolatixg to 
 
 C(Kil('3- ou Taxation, chap. IS.) \\'lietlier the act be regarded as 
 cieating a tax or a liieuse, it is uneoustitutional, because it was 
 passed in violation ol' article :>, section -lO, of the State Con- 
 stitution, which declares that "the assent of two-thirds of the 
 members elected to each branch of the legislature shall be 
 requisite to evi'ij bill appropriating the public moneys or 
 property for local or private purposes." (Laws of 1890, chap. 
 112, §'§ 40, 41; People ex reJ. v. Vomrs. of Hiijhixajjs, 54 X. Y. 276; 
 Trustees of E-rempt Fire)ne}i's Fund v. Roomc, 03 N. Y. 329; 
 Bumsey v. N. Y. & Y. E. R. B. Vrj., 130 X. Y. SS; People e.,: rel. 
 Adsit V. Allen, 42 N. Y. 378; State v. Bordelon, 6 La. Ann. OS; 
 State V. Steele, 37 La. Ann. 353; MeCauley v. Brooks, 16 Cal. 11; 
 Carr v. Stale. 127 Ind. 204; Restine v. State, 20 Ind. 328; Camp- 
 tell v. Comrs., 115 Ind. 591.) The act is also unconstitutional, 
 because section 11, which fixes the excise taxes upon the business 
 of trafficking in liquors, creates a classification of cities at vari- 
 ance with that created by article XII, section 2 of the State 
 Constitution, and seeks to legislate with respect to cities of the 
 State on the basis of such unconstitutional classification. (Const, 
 of 1846, art. 3, § IS ; In re N. Y. E. R. R. Co., 70 X. Y. 327 ; 
 Treanor v. Eiehliorn, 74 Hun, 58; /;; re Cliureli. 92 X^. Y. 1; In re 
 East River Bridge Co.. 75 Hun, 122; People e.io rel. v. Bd. Supr.t., 
 174 N Y. 1; ir. Xat. Bank v. Cheney. 94 111. 430; Ayers' Appeal. 
 122 Penn. St. 2(10; State e.p rel. v. Hammer, 42 X. J. L. 435; 
 Ander.'ion v. City of Trenton, 42 N. J. L. 486; aoldberg \. Dor- 
 land. 56 X. J. L. 3G4; Ale.rauder v. City of Elizaheth, 56 X. J. L. 
 71.) The act is likewise unconstitutional because it has not been 
 submitted to the several cities affected by its provisions as re- 
 quired by the cities article. (Const, of X. Y. art. 12, § 2; Satterlee 
 V. Camden. 41 X. J. L. 405; People v. C. P. R. Co.. S3 Cal. 393; 
 City of Pamdena v. Stimsou. 91 Cal. 239; Desmond v. Dunn. 55 
 Cal. 242; State v. Ander.^on. 44 Ohio St. 247.) The act is like- 
 wise unconstitutional, because it is a tax law, and iiii]iosos upon 
 different individuals engaged in the same class of traffic taxation 
 which is not uniform throughout the State, and makes such taxes 
 a lien on the property of the person carrying on the traffic. It 
 thus not only operates as a taking of projierty without due pro- 
 cess of law, but it abridges the privileges and immunities of 
 citizens of the United States within the meaning of both the 
 State and Federal Constitutions. {?l.rcl>ange Bank v. Hines. 3 
 Ohio St. 1; Tou-nship of Pine Grove v. Tallcott, 19 Wall. 675; 
 
LiQUOK Tax Laav 
 
 United t<tatei< v. ^iinger, 15 ^Yall. lll-llil; Head Honey Vases, 
 in U. y. 580; FoUoel; v. J*'. L. cG T. Co., 157 V. ^. 51)2; ^'r;/(or >-. 
 Ratteruian, 11 Ohio St. (JUl ; People ex rel. v. Alhertson, 55 N. Y. 
 50; Cooley on Const. Lim. [Gtk ed.] -:0(); Curtis v. Whipple, 21 
 AVis. o5G; Tyson v. ^ehool Direetors, 51 Penn. St. 9; Freeland v. 
 Hastings, 10 Allen, 570; 5S Maine, 590; Loicell \. Boston, 111 
 Mass. 151.) The act is unconstitutional, because by section 2;j 
 it prohibits persons from trafficking in liquors who are non resi- 
 dents of the State of New York, and likewise prohibits any eo- 
 partnership from trafficking, unless one or more members owning 
 at least one-half interest in the business are residents of the 
 State. i^WaUing v. MieUgan, 116 U. S. 110.) 
 
 T. E. Hancock, Attorncjj-Oeneral, for respondents. The act 
 did not require the assent of two-thirds of the members of the 
 legislature, and was not a bill appropriating public moneys or 
 property for local or private purposes. (Const. N. Y. art. 3, § 20; 
 Metr. Board of Excise v. Barrie, 31 N. Y. 662; People ex rel. v. 
 Dayton, 55 N. Y. 367; Fort v. Burcli, 6 Barb. 73; People v. Quigg, 
 59 X. Y. 86; Power v. Yillage of Athens, 99 N. Y. 602; People es 
 rel. Fresmeyer v. Comrs. of FrAiee, 59 N. Y. 96; Bertholf v 
 O'Reilly, 71 N. Y. 509-526; In re McPherson, 101 N. Y. 306; Laws 
 of 1880, chap. 233; Bd of ySuprs. v. Allen, 99 X. Y. 532; Peojile v, 
 Alden, 112 X. Y. 121.) The act in question is an assertion of the 
 ordinary police power of the State, and in no manner conflicts 
 with the Constitution of the United States. (License Cases, 5 
 How. [U. S.] 501; Bartmyer v. Iowa. 18 Wall. 129; Jilugler v 
 Kansas, 123 U. vS. 627; Cooley on Const. Lim. [6th ed.] 716; In re 
 Hoover, 30 Fed. Eep. 51; Walton v. State, 62 Ark. 197; Crowley 
 V. Christensen. 137 U. S. 86; Bertholf v. O'Reilly, li X. Y. 509; 
 Metr. Board of Excise v. Barrie, 31 N. Y. 657-667; Blocl; v. Jack 
 sonville, 36 111. 301; Com won wealth v. Brennan, 103 Mass. 70; 
 Colder v. Kurhy, 5 Gray, 507.) It was not necessary to submit 
 the bill to the cities of the State for their approval or acceptance 
 (Metr. Bd. of Excise v. Barrio:. 31 X. Y^ 657; Sedgwick on Stat 
 Const. [2d ed.] 409; People ex rel. v. Briggs, 50 X. Y. 553, 558; 
 People ex rel. v. Comstock, 78 N. Y. 356; Gordon v. Comes, 47 
 N. Y. 608, 616, 617 ; Cooley on Const. Lim. 210, 211 ; Sage v. City 
 of Brooklyn, 89 X^. Y'. 189; People ex rel. v. McClnvc. 99 X. Y 
 83.) 
 
l)K(JlWIOi\.S IvULATING TO 
 
 Julius M. Mii[jcr lor rt'WiJoudents. The statute is u liceusing 
 law. It is au exureise of the police power ot the State, li 
 permits the couduct ol' a traffic which, without such permission, 
 it: declares unlawful. It taxes the privilege of trafficking In 
 liquor, and does not tax the liquor itself. It does not tax 
 property. The excise taxes need not be uniform. {Leaven 
 north V. Booth, 15 Kans. 027; ^tate v. Hipp, uS Ohio St. 199; 
 Butziiuiii V. W'liitbcck, 42 Ohio St. '22:i; King v. t'appcUai\ 
 ■i2 Ohio St. -216 ; iitatc v. ,Siiik.v, 12 Ohio tSt. 315; IHcuki 
 V. t^tatc, 11 Neb. 547; Yuungblood v. Hci-ton, :>2 Mich. 419; Adlci 
 V. Whitbevk, 11 Ohio St. G.J7; lUvir. Bd. of Excinc v. Barric, 34 
 N. Y. 057; Laws of 1S'J2, chap. ■.WJ\ Laws of 1896, chaps. 112, 
 327; In re Mcl'horson, 104 N. Y. 316.) The ela.ssiticalion iu the 
 bill is not repugnant t(i the Constitution. It was not neces.sar} 
 ti) submit the bill to the majors of the cities of the first class. 
 (In re N. Y. El. R. II. Co., 70 N. Y. 327; //(, re Church, 92 N. Y. 1; 
 Toiinvlo V. Hall, 4 N. Y. lilt; District Township v. Dubuque, 7 
 Clarke [Iowa], 2(J2 ; People v. Haritor, 149 N. Y. 190; Williams 
 V. Bcoplc, 21 N. Y. It).-); In rc'Buyard, 25 Hun, 510; Weil v 
 Culhouii, 25 Fed. Kep. 805; l^tate v. Parker, 20 Vt. 357; Til. ol 
 OloversviUe v. Hou-ell, 70 N. Y. 287.) Two-thirds of the excise 
 taxes to be coUceted under the act are not public moneys of the 
 State, and the provisions of section 13 are not in contraventioE 
 of article 3, section 20, of the Constitution. {Ristinc v. Indiami 
 20 Ind. 33S; State v. Bordelon, 6 La. Ann. 69; Curr v. State, 137 
 Ind. 204; Campbell v. Board of Gomrs., 115 Ind. 591; McCanlei, 
 V. Brooks, 16 Gal. 11.) Eveiy presumption is in favor of ;. 
 statute, and to justify the court in pronouncing it an un 
 authorized expression of the legislative will it must be made to 
 appear that, when fairly and reasonably construed, it is in cleai 
 and substantial conflict with some provision of the Constitution 
 If the act and the Constitution can reasonably be so construed a» 
 to enable both to stand, it is I lie duty of the court to give theiu 
 that construction. {fiu:eei v. Cifji of Syracuse, 129 N^ Y. 316.) 
 
 AxDRiows, Cli. J. The sole question involved in this appeal 
 is the constitutionality ot the act of the legislature, approved 
 March 23, 1896, entitled "An act in relation to the traffic in 
 liquors and for the taxation and regulation of the same and 
 to pi-ovide for local option." The constitutionality of the act is 
 assailed on three principal grounds: (1) That it appropriates 
 
LiQuou Tax Law 23 
 
 the i»ublic moueys or property of the Htatc to private and local 
 })iirposes, aud uot having beeu passed by a two-thirds vote of the 
 legislature, is void under art. 3, sec. l20 of the i^tate Constitution; 
 (2) that section 11 of the act, which li.\es the excise tax upon the 
 business of traflicking in liquors, creates a classilication of cities 
 at variance with that created by art. 12, sec. 2 of tlie Consti- 
 tution; (3) that the act is a special city law as to each of the 
 cities of the State, which, under art. 12, sec. 2 of the Constitu- 
 tion, was required to be submitted to the mayor for acceptance or 
 rejection before final enactment. These questions are considered 
 in the opinion of the Appellate Division of the First Department 
 in the decision from which the appeal is taken. AVe concur in 
 the conclusion reached, and can add but little to the very cogent 
 and satisfactory opinion of Judge Patterson in the case. We 
 shall, however, in view of the great public interest in the subject, 
 make some observations upon the several questions in the order 
 in which they have been stated. 
 
 First. Art. 3, sec. 20, of the Constitution prescribes: "The 
 assent of two-thirds of the members elected to each branch of the 
 legislature shall be requisite to every bill appropriating the 
 public moneys or property for local or private purposes." It is 
 insisted that section 13 of the act of 189(3, which provides that 
 one-third of the revenues derived under the act, less the amount 
 allowed for collecting the same, shall be paid to the treasurer 
 of the State to the credit of the general fund as a part of the 
 general tax revenue of the State, and that the "remaining two- 
 thirds thereof, less the amount allowed for collecting the same, 
 shall belong to the town or city in which the traffic was carried 
 on from which the revenues were received, and shall be paid by 
 the county treasurer of such county and by the special deputy 
 commissioners to the supervisor of such town or to the treasurer 
 or fiscal officer of such city; and such revenues shall be appro- 
 priated and expended by such town or city in such manner as is 
 now or may hereafter be provided by law for the appropriation 
 and expenditure of sums received for excise licenses, or in such 
 other manner as may hereafter be provided by law," is in con- 
 travention of this section of the Constitution as respects the dis- 
 position made by the act of two-thirds of the revenue to town 
 and city purposes. This latter clause, it is insisted, is an appro- 
 priation of public money to local purposes within this section 
 of the Constitution, and it being conceded that the act did not 
 
24 Decisions Eelating to 
 
 receive a two-tliirds vote of the members of the legislature, if 
 the claim is well founded, the loLli section of the act, so far a« 
 relates to two-thirds of the revenues, is unconstitutional and 
 void. 
 
 The appropriation of this part of the excise tax revenues is 
 without doubt for a local purpose within article 3, section 20 of 
 the Constitution. The fact that the purpose for which an appro- 
 priation is made is public does not « ithdraw it from the inhibi- 
 tion of the section if the purpose is also local. An act may be 
 local although public. (Church^ (Jh. J., Ecrrigan v. Force, 68 
 N. Y. 381; People v. Alkn, 42 id. 378.) The crucial question, 
 therefore, is whether the act of ISIKI is, within the section, an 
 appropriation of public moneys. This provision of the present 
 < Constitution was in the Constitution of 1821, and has ever since 
 formed a part of the organic law of the State. Section 13 of the 
 act of 18;t(j, after fixing the rule of distribution of the excise 
 taxes as between the State and the cities and towns, prescribes 
 that the revenues leceiNed by the cities and towns shall be ap 
 propriated and expended for the purposes to which the excise 
 nioiieys are applied under existing laws. The Excise Law of 
 is;»i', which was in lorce up to the passage of the act of 1896 
 iiiidei- which all excise moneys were paid over to the severa' 
 towns or cities in wliich licenses were granted and in which the 
 license moneys were received, declared in substance that the 
 moneys should be applied towards defraying the expenses of local 
 government therein. (Laws of lS!t2, ch. 401, §15.) Under the 
 act of 1896, which in effect incorporates into the thirteenth 
 section this provision of the act of 1892, the same application is 
 (o be made of the excise Inxes received by the cities and towns, as 
 was prescribed by th(> act of 1892 in respect to license fees co' 
 lected under that act. 
 
 Upon the point whether two-thirds of the traffic taxes imposed 
 by the act of 1896 and which the thirteenth section declares shall 
 belong to the town or city where the traffic is carried on, are 
 public moneys within article 3, section 20 of the Constitution, it 
 is important to notice that although this section has been since 
 1821 a part of the Constitution of the State, excise moneys' 
 collected during that whole period have been appropriated under 
 a general law of tl,e State exclusively to the localities where the 
 licenses were granted to be applied to diminish local taxation or 
 to some purpose of local charity. Indeed, this has been the 
 
Liquor Tax Lam 
 
 uniform policy of the State in respect of the disposition of excise 
 moneys derived from the traffic in liquors from the foundation of 
 the State government. By the earliest excise law of the State 
 (Chap. 17 of the Laws of 1779) the excise commissioners were 
 directed to pay the excise moneys collected in each county to the 
 county treasurer, to be applied towards defraying the contingent 
 expenses of the county. The system of appointing commissioners 
 of excise has not been uniform. Under the Colonial Act (Chap. 
 51 of the Laws of 1775) they were designated by name in each 
 of the localities. The act of 177!) designated certain officials to 
 act as commissioners. Since that time county boards of excise 
 have been created, as under the act of 1857, and subsequently 
 town and city boards were substituted. Under the county system 
 the excise moneys were paid to the counties, and under the 
 system of town and city boards to the towns and cities in which 
 the licenses were issued. But notwithstanding many changes 
 from time to time have been made in the details of the excise 
 system, there has, for a century of the State government and up 
 to the act of .1896, been one uniform policy recognized by the 
 legislature, namely : that moneys received for licenses for the 
 liquor traffic should be paid over to the localities of the State 
 in which the licenses were granted, to be applied to some object 
 of local government or interest. 
 
 Under the former license laws large sums have been collected 
 annually in cities, villages and towns. In a strict and accurate 
 sense they were public moneys. No exaction can be lawfully, 
 made of a citizen by way of tax, impost or excise, except under 
 the authority of the legislature, and the product of such im- 
 position is public money. But there is a well settled distinction 
 between the money of the State and money levied under cor- 
 porate powers conferred upon cities, villages and towns for local 
 and corporate purposes. In the latter case the money levied 
 and collected is not the money of the State. It is the money of 
 the town, city or village in which under the exercise of corporate 
 pov.-ers it was levied and collected, and to it the State has no 
 title. {People v. IngersoU, 5S N. Y. 1; Hhepherd's Fold, 96 id. 
 138.) In every city or village charter the power of local tax- 
 ation for municipal purposes is conferred with authority to 
 appropriate the money raised to purposes of local government. 
 This, in a general sense, is an appropriation of public moneys 
 to local purposes, but it has never been supposed that it was an 
 
I)i.;('isi().\'s Rei.A'I'im; 'ju 
 
 appropriation widiiii (lie mcaniii};- of ai-ticlc :i, si/diuii -0 of the 
 Cuuwtitiition, so us (o ir(iuii-(' a (wo-thinls voli' to pass a bill 
 granting a city or village cliailcr. 
 
 The fornn'r excise hiws stood uixni a (liricn'iii Itasis from the 
 charter laws of cities and villages. Tliey wen- gvncral laws 
 applicable to the whole Slate, establishing a syst(?m for the regu- 
 lation of the tratlic in li([nors, varying in some I'esp.'cts in their 
 application in cities and towns. The system was administerc] 
 through boards of excise, sonaetimcs, as we have s<mmi, appointed 
 diced ly by the legislatnre, but generally elected in towns, with 
 jurisdiction to grant licenses in the town for wliich they were 
 elected, and in cities, appointed by local authorities. The excise 
 coniniissioners, although locally elected or appointed, were State 
 agencies for administering the excise system, and, like assess<irs. 
 collectors and highway commissioners, were indejiendent public 
 officers, exercising public po\\ers, and charged with public 
 duties sjiecially jirescribed l)y law. {Lorilhird v. Toini of Mon- 
 roe, 11 N. Y. :{92; I'liiplc V. Yan Kviirfii, 74 id. :!ll).) In grant- 
 ing licenses they A\'ere not exercising a jurisdiction as agents cf 
 the corporation within which they acted, for the granting of 
 licenses for the tiallic in liquor was not a power vested In towns, 
 villages or cities. They exercised their functions under the 
 authority of the State, which prescribed their jiowers and duties, 
 and the mode of their appointment was a convenient method for 
 designating the agencies through which the system should be 
 administered. 
 
 We assent to the claim of the counsel for the appellant that 
 the towns, cities and villages never acquired any irrevocable 
 right to receive the license fees collected. We do not doubt that 
 it would have been competent for the legislature from the first 
 to have required all license fees to be paid into the State treasury 
 for general State purposes, or at any time to ha\e changed the 
 practice which was adopted. The reason for the legislative 
 policy which has hitherto uniformly prevailed, to permit license 
 fees to be applied to the uses of the locality where the traffic 
 was licensed and carried on, is obvious, namely ; to furnish some- 
 measure of indemnity against the public burdens thrown upon 
 localities by the prosecution of a business therein under State 
 authority, powerfidly contributing to disorder, pauperism and 
 crime. Seventy-five years hav(> elapsed sinc(> th(> constitutional 
 provision now in question first became jiart of the organic law. 
 
Liquor l^ix Law 27 
 
 aud during that long period tliis practice, under statutes which 
 concededly were enacted without a two-thirds vote, has prevailed, 
 and has never hitherto been challenged as a violation of the 
 Constitution. Those statutes as distinctly appropriated public 
 moneys to local purposes as does the statute of 1896, and were 
 even more subject to the constitutional criticism made to the 
 act of IS'JG, since they appropriated to tlie use of the cities and 
 to'v\ iis not a part only, but the whole of the excise moneys col- 
 lected. This legislative policy which has prevailed for so long a 
 period, sancti(»ned by numerous statutes, never questioned m the 
 courts and acquiesced in by all departments of the State govern- 
 ment, is a practical construction of the constitutional provision 
 now in question, that an appropriation of excise moneys to the 
 use of towns and cities under acts passed by a majority vote, is 
 not an infraction of the Constitution, and this construction 
 ought not now to be disturbed. 
 
 AVe also assent to the proposition that the provisions of the 
 former excise laMS under ^Yhich excise riioneys were paid over 
 to localities, constituted appropriations of public moneys. But 
 the public moneys referred to in article 3, section 20, of the 
 (Constitution, are the public moneys of the State as contradis- 
 tinguished from public revenues levied for local purposes by 
 towns, cities and villages under State authority, or moneys 
 which by a long course of legislation, as in the case of exciso 
 moneys, have been treated as standing in the same situation. 
 
 The act of 1896, also, we think, appropriates to the towns and 
 cities the two-thirds of the excise taxes which may be collected 
 under the act. But it is an appropriation which operates on 
 the fund at the very moment of its collection. The two-thirds 
 so appropriated never reaches the treasury of the State and 
 never bears the impress of State money. The statute declares 
 in express terms that two-thirds of the fund collected "shall 
 belong to the town or city in wliich the traffic was carried on, 
 from which the revenues were received." It was competent for 
 the legislature so to declare by a majority bill, unless there is a 
 distinction between excise money under former statutes and 
 excise taxes under the act of 1896, which would justify such an 
 appropriation in the one case, but not in the other. We think no 
 such distinction exists. The claim that the act of 1S96 is a tax 
 law, having for its primary purpose the raising of revenue for the 
 support of government, involves the theory that the legislature in 
 
2S DECISION'S Kelating to 
 
 enacting it intended lu depart lium the iH-ineiple upon wbieli all 
 excise laws have hitherto been iounded. That prinriple has been 
 by exaction and restriction to limit a dangerous traffic in the 
 interests of social order and the public welfare. It is probably 
 competent for the legislature to tax o.:cu]iatious or business as 
 a source of revenue, and it could tax the liquor traffic I'or this 
 purpose. The selection of the subjects of taxation rests with 
 the legislature, and the imposition of a license fee Jor revenue 
 on a business or occupation is an exercise of the power of taxa- 
 tion. (The Liccitsc Tux Cusv^a, 5 Wall. 402; Cooley C(Uist. Lini. 
 L'Ol.) But an exaction imposeil as a condition of the right to 
 carry on a business dangerous to public morals or which may 
 involve public burdens, by way of discouragement or regulation, 
 is not in any proper sense a tax. It does not proceed upon the 
 principle upon which taxes are levied, and upon which taxation 
 is justified, viz., the protection afforded by the government to 
 the taxpayer. The imposition is made in such cases generally 
 for a double purpose, .to discourage the business and to secure 
 indemnity in jiart to the public from the losses and burdens 
 which the business is likely to entail. The so-called excise tax is 
 for the protection of the community and not for the protection 
 of the person from whom it is exacted. It is said by Judge 
 CooLBY, in his work on "Taxation" (p. 397), that "custom has 
 much to do in determining Avhether certain classes of exactions 
 are to be regarded as taxes or as duties imposed for regulation."' 
 There can be no doubt that a large revenue will result from 
 excise taxes imposed by the act of ISOii, nor that this was con- 
 templated by the legislature. But this will be a consequence of 
 the system, and was not the motive of its adoption. It was 
 manifestly not the intention of the legislature to encourage the 
 traffic, but to control, restrict and regulate it, and by the local 
 option provision it is rendered possible that it may be wholly 
 prohibited in every town of Ihe State, a provision quite incon- 
 sistent with a pui'jiose to encourage the traffic or to make it 
 an ordinary source of revenue. The fact that the exaction is 
 in the act denominated a tax is not conclusive. All exactions 
 imposed upon citizens by public authority are in a general sense 
 taxes whether imposed for regulation or revenue. The character 
 of the act of 1896, whether a tax law in a proper sense, or a 
 law enacted under the police ])ower, must be determined from 
 its whole scope and tenor, and there can be no reasonable doubt 
 
LiQUDK Tax Law 29 
 
 -\ve think that it is ol the latter chai-aetei-. It is radically dif- 
 ferent in some respects from the excise laws which it supersedes. 
 liut the changes are in the administratiun of the excise system 
 and not in its essential character. The most noticeable changes 
 are: (1) State supervision in place of supervision through boards 
 of excise, and (2) the opening of the traffic to all citizens (with 
 certain exceptions) who shall pay the license tax, and give 
 the bond required. The payment of the tax and the gi\'ing of 
 the bond are conditions precedent to the right to engage in the 
 business, and the imposition of conditions precedent is the 
 distinguishing test of a license law. (See Cooley, J., Yonng- 
 ilood V. Sexton, 32 Mich. 406; Marshall, J., Adicr v. Whitbeck, 
 ■44 Oh. St. 539.) The analogy between the law of 1896 and 
 the former excise laws is strongly marked. There is the same 
 necessity of a public certification of a right to engage in the 
 traffic; the same restrictions and regulations intended to guard 
 the trafiSc and reasonably protect tlie public against its 
 acknowledged evils; the same principle of local option, and the 
 act incorporates the principle of the Civil Damage Law. The 
 new features of the system may prove to be eflBcient means of 
 repression and regulation; such as the change in the adminis- 
 trative agencies, and the much larger tax upon the right to 
 engage in the traffic. 
 
 We do not deem it important to consider how far the legis- 
 lature may go in alienating the public revenues, derived from 
 the exercise of the ordinary power of taxation to local or private 
 purposes, or in barring itself from a resort to the usual sources 
 of taxation. Clearly it cannot appropriate the public moneys of 
 the State for a local though public purpose, except by a two- 
 thirds bill, and this whether the money is actually in the 
 treasury of the State or in process of collection. But the legis- 
 lative declaration in the act of 1896, that two-thirds ol' the excise 
 taxes shall belong to the towns and cities, is in accordance with 
 an uninterrupted legislative understanding that the legislature 
 may devote excise moneys to the uses of the towns and cities in 
 which they are collected, by majority bill, and it is now too late 
 to question this construction of the Constitution. 
 
 Second. We perceive no force in the objection based upon 
 the departure in the act of 1896 from the classification of cities 
 made by article 12, section 2, of the Constitution. The section 
 is new and its manifest purpose is to give some measure of 
 
30 Decikion'h Kklating to 
 
 protection to cities against tlie evils of special city legislation. 
 It divides the cities ot the State into three classes according to 
 population, the first class embracing cities having a population 
 of 250,000 or more; the second, those having a population of 
 50,000 and less than 250,000, and the third, all other cities. 
 The section then proceeds: "Laws relating to the property, 
 affairs or government of cities and the several departments 
 thereof are divided into general and special city laws; general 
 city laws are those which relate to all tlie cities of one or more 
 classes; special cily laws are those which relate to a single city 
 or to less than all the cities of a class." Then follow provisions 
 for the transmission of a copy of every special city law after 
 it has passed both branches of the legislature, to the mayor of 
 the city for approval or rejection, before its final enactment 
 and for subsequent action by the legislature in case of dis- 
 approval. The law of ISDi; in fixing the excise taxes graduates 
 them in cities according to population, but does not follow the 
 classification in this section of the Constitution. More is exacted 
 in New York than in Brooklyn or Buffalo, and more in Brooklyn 
 than in Buffalo, althongh these cities are cities of the first class 
 in the classification in article XII, section 2. 
 
 The conclusi\e answer to the ((institutional objection based on 
 this section is, that the act of 181)6 is neither a general nor special 
 city law, nor does it relate to the "property, affairs or govern- 
 ment" of cities. It is a general State excise law, with such 
 special provisions and adaptations to localities as to the legisla- 
 ture seemed projier. Whether the law should be uniform in its 
 application to the cities of the State, or whether a discrimination 
 should be made in the excise tax as between New- York and any 
 other city, and the extent of the discrimination, was in the discre- 
 tion of the legislature. In enacting a general law under the 
 police power, the legislature is not hampered or restrained by the 
 classification of cities in the Constitution. It may adjust details 
 to meet varying conditions. In a health law, regulations which 
 might be suitable and proper for the city of New Y'ork, a great 
 seaport, exposed to peculiar dangers from infection and disease, 
 might be unnecessary, burdensome and ojipressive if applied to 
 an inland city like Buffalo. The constitutional limitation relates 
 to city laws, either general or special, and not to general laws 
 for the government of the State, including the cities therein. Nor 
 is the law of 1896 a law relating to the "property, affairs or 
 
Liquor Tax Law 31 
 
 government of cities." The granting ol licenses for the liquor 
 traffic has never been a corporate function or duty of a city, as 
 fiuch. It is a function which the State in its aggregate capacity 
 has administered. It has made use of local machinery as has 
 been shown, and it has permitted the cities to use excise moneys 
 for local purposes. But excise laws do not relate to the affairs 
 of cities, and still less, to their property or government within 
 the section of the Constitution now considered. Cities are 
 affected by the act of 1896, as are all other localities in the 
 State. But this is because in the framing of general laws, all 
 places are alike subject to the legislative power. The act in 
 question is not special legislation under the disguise of a general 
 law. It will be the duty and we have no doubt the pleasure of 
 the court, on a proper occasion, to give full effect to this new 
 provision of the Constitution, and to construe it with that liberal 
 spirit which is especially required in the interpretation of a 
 remedial provision of the fundamental law, so that, if possible, 
 it shall be eflScient to secure the purpose of its enactment. 
 
 Third. The objection that the law of 1896 was a special city 
 law, which, under article XII, section 2, of the Constitution, 
 ought to have been referred to the mayors of the cities affected, 
 has been answered in the consideration of the other objection 
 based on this section. It was not a special city law. It did 
 not relate to the "property, affairs or government" of any city 
 within the meaning of the section referred to. 
 
 We find no ground for questioning the constitutionality of 
 the act of 1896, and we, therefore, affirm the judgment below. 
 
 All concur. 
 
 Judgment affirmed. 
 
32 Decisions Relating to 
 
 Supreme Court, Saratoga Special Term, May, 1896. Reported. 17 Misc. 8. 
 
 I'EurLE ex rel. Daniel Cramer v. Stephen O. Medberry, County 
 
 Treasurer, Etc. 
 
 1. Excise — Liquor tax certificate — Population to be determined solely by 
 
 state or federal census. 
 For the purpose of fixing the rate of tax to be paid under subdivision 
 1 of section 11 of the act of 1896, the population Is to be determined 
 solely by the last State or federal census. 
 
 2. Same — Rate when population not given by census. 
 
 If the population of a given locality is not shown by either the last 
 State or federal census, it falls within the provision of the statute of 
 "any other place," and the tax in such case is $100. 
 
 Appli<iitioii to romiH'l the t'ounty treasurer of Saratoga county 
 to issue to tlie relator a liquor tax certificate, under chapter 112 
 of the Tjaws of isiMi, known as the ''Liquor Tax Law." 
 
 Thomas O'Connor and J. W. Houj^hton, for relator. 
 
 •T. S. L'Auiorcaux, for respondent. 
 
 McLaughlin, J. The iclaloi- applied to the county treasurer 
 of Saratoga county lor a certificate, under chapter 112 of the 
 Laws of ISOfi, permitting him to traffic in liquors to be drunk on 
 Ills jircmisos, which are situate in the village of Waterford, in said 
 county. At the time lie made his application he tendered to and 
 left with the county treasurer the sum of one hundred dollars 
 ($100), the amount of tax as claimed l)y him. The county 
 treasurer refused to issue to him the certificate provided by the 
 act above referred to, upon the ground that the tax was two 
 hundred ($200) instead of $100. The sole question, therefore, to 
 be determined upon this application is whether or not the relator 
 is entitled to a certificate permitting him to traffic in liquors to be 
 drunk on his premises upon the payment of the sum of flOO. 
 
 The correct answer to this question, of course, depends upon the 
 construction given to the sfatut(\ Section 11 provides that: 
 "Excise taxes upon the business of trafficking in liquors shall be 
 of four grades and assessed as follows : 
 
 "Subdivision 1. Upon I ho business of Irailicking in liquors to 
 be drunk upon the premises where sold * » * jf » » » 
 
LiQuoE Tax Law 3i! 
 
 in a city having by the last State census a population of fifteen 
 hundred thousand or more, the sum of eight hundred dollars ; if 
 in a city having by said census a population of less than fifteen 
 hundred thousand, but more than five hundred thousand, the 
 sum of six hundred and fifty dollars; if in a city having by said 
 census a population of less than five hundred thousand, but more 
 than fifty thousand, the sum of five hundred dollars ; if in a city 
 or village having by said census a population of less than fifty 
 thousand, but more than ten thousand, the sum of three hundred 
 and fifty dollars; if in a city or village having by said census a 
 population of less than ten thousand, but more than five 
 thousand, the sum of three hundred dollars ; if in a village having 
 by said census a population of less than five thousand, but more 
 than twelve hundred, the sum of two hundred dollars; if in any 
 other place, the sum of one hundred dollars." 
 
 Subdivision 4 of same section provides : 
 
 "When the population of a city or village is not shown by the 
 last State census, it shall be determined lor the purposes of this 
 act by the last United States census." 
 
 The village of "V^^aterford was incorporated in 1794. Its popu- 
 lation is not shown by either the last State or federal census, and 
 it cannot be determined by the return made by the enumerators 
 without the aid of extrinsic evidence. The respondent, however, 
 insists that at the time each enumeration was taken the village 
 then had a population of over 1,500, and the same is clearly 
 shown by evidence submitted upon this application. This is un- 
 doubtedly true — in fact, the relator does not deny it, but insists 
 that the population must be determined in the manner pointed 
 out by the statute ; and, for the purposes of fixing the tax, cannot 
 be determined in any other manner, and that, inasmuch as the 
 population is not shown by either the last State or federal census, 
 the village of Waterford comes within the provision of the statute 
 providing that the tax " if in any other place, the sum of one 
 hundred dollars." I am inclined to think that the relator's con- 
 tention in this respect is correct. The act in question having pro- 
 vided a method for determining the population, for the purpose 
 of fixing the tax, the population must be determined in the man- 
 ner provided by statute and cannot be determined in any other 
 way. 
 
 The true construction to be given to the statute for the pur- 
 pose of fixing the tax, it seems to me, is this: All certificates 
 3 
 
34 Decirioxs Eelatixo to 
 
 of the first, second and third classes are to be issued upon the 
 payment of a tax, the amount of which is regulated by the popu- 
 lation of the municipality where the business is to be conducted 
 as shoint dy the last State census; or, if the population is not 
 shown by the last State census, then it must be determined by 
 the last United ,States census. And, if it is not shown by the 
 last State or federal census, then it comes within the provision 
 of the statute providing that in any other place the tax shall be 
 $100. The method provided for determining the population is 
 a fixed and arbitrary one. The legislature had the power to 
 select this method^ and, having selected it, that method, and that 
 method alone, must be lollowed. If the respondent can introduce 
 evidence to show that the population of the village in question 
 was, at the time the enumeration was taken, over twelve hundred, 
 then the relator can introduce evidence to show that it did not, 
 in fact contain that number of inhabitants. To avoid such a 
 contest was the vrv thing that the legislature intended to do, 
 and the reason for it is quite manifest. The act not only seeks 
 to regulate the trafficking in liquors, but it also seeks to provide 
 a revenue for the State; and, if the population of a given locality 
 is not shown by either the last State or federal census, then it 
 falls within the provision of the statute of " any other place." 
 ']''-> hold otherwise, the words " any other place " would have to 
 be eliminated from the statute, and that would, in effect, destroy 
 one of the objects sought to be a,ccomplished by the statute itself. 
 The court can well take knowledge of the fact that, if the popu- 
 lation of a given locality must first be determined as a question 
 of fact before the amount of the tax can be fixed, the expense 
 incurred in so doing might diminish, in no small degree, the 
 amount which the State otherwise would receive. If there are 
 localities in the State, the population of which is not shown 
 by the last State or federal census, the legislature has the power, 
 by future enactments, to regulate the amount of tax in such 
 places. Having reached this conclusion, I think the relator is 
 entitled to a certificate, he having tendered to the county 
 treasurer the amount of tax required, and an order can be entered 
 to that effect; the form of the order to 1)(> agreed upon or settled 
 on notice. 
 
 Ordered accordinslv. 
 
Liquor Tax Law 35 
 
 Supreme Court, Monroe Special Term, May, 1896. Reported 17 Misc. 11. 
 
 The People ex rel. The Rochester Whist Club v. John B. 
 Hamilton^ Treasurer of the County of Monroe. 
 
 1. Excise — Liquor Tax Law — Bona fide social clubs need not take out 
 
 tax certificate, 
 A bona fide social club, regularly organized for a legitimate purpose, 
 with a limited and selected membership, which, incidentally, furnishes 
 liquor to its members exclusively, upon payment of a sum equal to the 
 price of such liquor and a small addition for the expense of serving it, 
 which sum is paid into the treasury and used for replenishing the stock. 
 Is not within the provisions of the Liquor Tax Law of 1896, and is not 
 required to take out a certificate. 
 
 2. Same — Sale or trafficking. 
 
 Such a method of furnishing members with liquors is not a sale ol 
 or trafficking in liquors within the meaning of section 31 of the act. 
 
 Certiorari to review a decision of tlie county treasurer of 
 Monroe county, refusing to issue a liquor tax certificate to the 
 relator. 
 
 Frank M. Bottum and John A. Barhite, for relator. 
 
 George E. Forsyth, district attorney, and Charles E. Bostwick, 
 for defendant. 
 
 Davy, J. This is a proceeding by certiorari to review the 
 decision of tlie county treasurer of Monroe county in refusing to 
 issue to the relator a liquor tax certificate, as provided in chapter 
 112 of the LaAvs of 1896, commonly known as the Raines Liquor 
 Tax Law. 
 
 The reasons stated in the return for refusing the certificate 
 are, that the relator is a corporation organized to promote social 
 intercourse among its members and to provide them with the 
 conveniences of a club-house, and that it can not engage in the 
 business of traflScking in liquors. It is hardly necessary in this 
 case to discuss the discretionary power that is vested in the 
 county treasurer under the statute, to grant or refuse a liquor 
 tax certificate. I am inclined to think, however, that if any 
 person who applies for such a certificate brings himself squarely 
 Avithin the terms of the law by complying with all the statutory 
 
:!(; Decisions Relating to 
 
 prelimiuarics, that the certificate can not legally be withheld; 
 but as these proceedings are instituted in a friendly manner and 
 for the purpose of obtaining a judicial construction of the statute 
 pertaining to the relator's legal right to dispense liquors to its 
 members, the only question, therefore, which I deem it necessary 
 to consider upon this application is, whether the relator is 
 required, under the provisions of said act, to take out a liquor 
 tax license. 
 
 It is conceded that the relator is a bona fide club and wa,s duly 
 incorporaled on the 10th day of January, 1S84, having among its 
 objects the promotion of social enjoyment and recreation among 
 its meniljcrs, such as the practice and cultivation of the game of 
 whist and oUicr innocent amusements. The organization has 
 followed the familiar rule of adopting a constitution and by-law.s 
 which set forth the object of the society and the qualifications for 
 membership and the number and character of its officers. These 
 together with its charter, constitute its fundamental law, and are 
 the source and limit of its authority to transact business. The 
 relator rents and furnishes a large house which is located at No. 
 40 North Fitzhugh street, which contains parlors, a reading- 
 room, billiard and card-rooms, a dining-room, kitchen and store- 
 room, and a room in which liquors and cigars are kept and 
 dispensed to the members of the club only upon their oral or writ- 
 ten request, at a price fixed therefor by the house committee, for 
 which the membois ordering the same may pay c^sh, or have it 
 charged and pay therefor monthly. This fund, together with the 
 annual dues and initiation fees, are used in paying for the liquors 
 and other supplies which are consumed by its members, and in 
 defraying the general expenses of the club. 
 
 The membership of the club is limited and consists of resident 
 and nonresident members, and no person can be admitted as a 
 member unless he is twenty-one years of age and his name has 
 been proposed by two members of the society who are in good and 
 regular standing. The rules also require that his name, with the 
 names of those who proposed him for membership, shall be posted 
 upon the bulletin board of the club for at least two weeks before 
 he can be elected. At the election two negaitive votes or black 
 balls are sufficient to exclude any candidate. Members are 
 divided into two classes, resident and nonresident. The initiation 
 fees are, |20 for resident members, and flO for nonresident mem- 
 bers, and tlie annual dues are |32 per year for resident members. 
 
Liquor Tax Law o7 
 
 and $10 per year for nonresident members. The constitution also 
 provides that each member shall have the right to entertain a 
 friend not residing in the city of Eochester to the privileges of 
 the club for the space of two weeks, upon recording the name 
 and residence of such friend in the visitors' book, together with 
 his own, and producing from au ofiQcer of the club a card of 
 invitation. A member at whose request an invitation is given to 
 a guest is held responsible to the club for all obligations of such 
 guest. The club-house is open to its members at all times, but 
 no games of any land are permitted to be played on Sunday or 
 any other time for monej'. ]Many of its members make the club- 
 house their home, except for lodging, and they spend much of 
 their time when not engaged in business in its parlors and 
 reading-room, and in playing and enjoying the familiar ^ame 
 known as whist. 
 
 The committee having the management of the organiz;ition 
 usually orders, from time to time, such quantities of provisions 
 and liquors as will meet the demand of the individual members of 
 the club. The food is served in the dining-room and the liquors 
 are dispensed to its members by its steward and other servants at 
 prices fixed by the officers of the club. The prices for liquors are 
 intended to cover the actual cost of the articles furnished and 
 the expenses incurred in serving them. The money so received is 
 paid into the treasury, and is again used for replenishing the 
 stock, which are in like manner dispensed to the members. It is 
 evident that if the members only paid into the treasury the cost 
 price of the liquors, there would be no fund to pay the servants 
 and other outlays necessarily incurred in dispensing them, and 
 the deficiency would have to be made good out of the funds 
 received from initiation fees and annual dues. The plan adopted 
 is a simple method of assessing each member the cost price of the 
 liquors he consumes, and, in addition thereto, a sufficient sum tn 
 pay the expenses incurred in serving them. The relator has 
 pursued this method of supplying liquors and refreshments to its 
 members ever since its organization, and its right seems never to 
 have been questioned or challenged before. 
 
 Black, in his work on Intoxicating Liquors, says, "Whether oi 
 not a social club, such as are very common in all large cities, may 
 lawfully fuvnisli liquors to its members, as a part of the entertain- 
 ment which it provides for them, without procuring a license or 
 paying a-tax as a retailer, is a question which has provoked great 
 
3s I)ECisioxs Kelatii\(j t( 
 
 discussion of late years, and upon which the authorities are by no 
 means harmonious." After referring to the authorities in the 
 different States upon the subject, he reaches the conclusion that 
 the intent must govern, and that if the organization is a bona fide 
 club "and conducted in good faith, with a limited and selected 
 membership, really owning its property in common, and formed 
 for social, literary, artistic or other purposes, to which the 
 furnishing of liquors to its members would be merely incidental — • 
 in the same way and to the same extent that the supplying of 
 dinners or daily papers might be, then it can not be considered 
 within either the purpose or letter of the law." 
 
 Notwithstanding the conflict of authorities in other States upon 
 the subject, 1 think that the question is no longer a doubtful one 
 in this State. The recent decision of the Court of Appeals, in the 
 case of The People v. Adelphi Club, 149 X. y. 5, holds that a 
 bona fidv social club, regularly organized under the statute for 
 legitimate purposes, to which the furnishing of liquors to its 
 members is merely incidental, and liaving a limited and selected 
 membership, does not constitute a sale within the meaning of the 
 Excise Act of 1892. Nothing can be said that will throw any 
 additional light upon the (juestion under consideration than what 
 is stated in the \ery interesting and exhaustive opinion of Judge 
 Haight, In the Adelphi Club case, supra. The learned district 
 attoiney coiilr'nds, however, that the recent statute of 1896 is 
 much more comprehensive and stringent in its terms than the act 
 of ISllL', and was intended to include social clubs within its pro- 
 visions, and, therefore, the decision of the Court of Appeals in 
 the Adelphi Club case is not controlling in this proceeding. The 
 legislature, in the act of 1896, has prohibited all persons, "^corpor- 
 ations, associations and copartners from engaging in the business 
 of trafficking in liquors except as authorized in said act, but it 
 has not undertaken to prohibit the drinking or buying of liquor 
 or the distribution of it in severalty among persons who own it in 
 common. 
 
 The question then arises whether the regulations adopted by 
 the Whist Ciul) for dispensing liquors among its own members 
 constitute the business of ti-afficking in liquors within the mean- 
 ing of section Itl of the act of 1896, which makes it unlawful to 
 carry on the business without a tax license. A corporation, being 
 a mere creaiure oC the law, can exercise no power or authority 
 except such as is conferred or authorized bv its charter. This 
 
Liquor Tax Law .'•>!) 
 
 principle has been so often applied in the construction of corpor- 
 ate powers, that T do not deem it necessary to refer to authorities. 
 The relator's charter and its by-laws are the measure of its 
 powers. It can engage in no enterprise or business beyond the 
 purpose and object of its charter. If liquors and cigars are 
 furnished to its members, it is merely incidental to the business 
 for which it was incorporated. No one would entertain the ideii 
 for a moment that the relator could engage in the biisiness of 
 banking or the business of manufacturing articles of merchandise, 
 and yet it would have just as much power and authority, under 
 its charter, to engage in either of these enterprises as it would 
 to throw open its doors to the public and engage in the business 
 of trafficking in liquors. 
 
 Clubs are now, and have been for years, an important feature 
 of social life in all large cities. Many of them occupy buildings 
 of their own, which contain reading-rooms, library, smoking 
 rooms and restaurant, baths, and even bedrooms. They are 
 usually organized to meet for social intercourse and the 
 promotion of literature and science. They are always open to 
 the members the same as a man's dwelling-house is open to the 
 members of his family. It is well known that liquors are dis 
 pensed to their own limited and selected members, and that they 
 never have been required in this State to take out a license. If 
 the legislature intended that these well-known organizations 
 should take out licenses to sell liquors exclusively to their mem 
 bers, it is singular that the statute should contain no provision 
 for the issuing of liquor tax certificates to them. The faict that 
 clubs are not mentioned in the act has an important bearing upon 
 the meaning to be placed upon the statute in reference to taxing 
 such organizations. The intention of the legislature upon this 
 point must be ascertained from the context of the act. It is a 
 familiar rule that when the language of an act of the legislature 
 is plain and without ambiguity, the act construes itself, and 
 courts will presume that the legislature intended what is plainly 
 expressed therein. 
 
 Section 31. provides that it shall not be lawful for any corpora 
 tion, association, copartnership, or person who has not paid a 
 tax as provided in section 11 of this act, and obtained and poHted 
 a liquor tax certificate, to sell, offer or expose for sale or give 
 away liquor in any quantities less than five wine gallons at a 
 time, and without having paid such tax and complied with the 
 
40 DeCISJONS liELATIN(J TO 
 
 provi.siDiis of this act, to sell, offer, or expose for sale, or give 
 away ou the promises of such vendor, or in any building, booth, 
 yard or garden apitertaining thereto or connected therewith. It 
 also provides that it shall not be lawful for any corporation 
 association, copartnership or person, whether they have paid such 
 tax or not, to sell, offer, or expose for sale or give away am 
 liquor on Sunday or before .") a. m. on Monday, or on any other 
 day between 1 o'clock and 5 o'clock in the morning. Section 11 
 provides that the excise tax upon the business of trafficking in 
 liquors shall be of four trades. First. Upon the business of 
 trafficking in liquors to be drunk upon the premises where sold 
 or which are so drunk, whether in a hotel, restaurant, out 
 buildinii', yard or garden appertaining thereto or connected there 
 with. Second. Upon the business of trafficking in liquors in 
 quantities of less than five wine gallons, no part of which shall 
 be drunk upon the premises where sold or in any outbuilding': 
 yard, booth or garden appertaining thereto or connected there 
 with. Third. Upon the business of trafficking in liquors by a du1v 
 licensed pharmacist, which liquors can only be sold upon the 
 written prescription of a regularly licensed physician, signed 
 by such jiliysician. Fourth. Upon the business of trafficking in 
 liquors u]ion any car, steamboat or vessel, to be drunk on such 
 car or any car connected therewith or any such steamboat or 
 vessel or upon any barge attached thereto or connected therewith. 
 It seems to me that these requirements are inconsistent with the 
 idea that the legislature intended that a social club whose doora 
 are closed to everybody except its members should take out a 
 liquor tax to traffic in liquors exclusively Avith its own members. 
 The act, in my judgment, is not intended to apply to a business 
 conducted in a private manner and in a place to which the public 
 could not have free access. 
 
 It was conceded, upon the argument, by the learned counsel 
 for the defendant, that the question whether social clubs were 
 roq nired to pay a tax would depend largely upon the construction 
 whjcli the court would give to the words "trafficking in liquors." 
 It W generally understood that a trafficker is one who is engaged 
 in a particular branch of business or trade, like a merchant who 
 buys and sells goods for a profit. Can it be said that this club, 
 which deals solely with its members, could barter and carry on a 
 traffic in the sale of liquor for a jn-oflt when every dollar paid 
 for liquors would go inio the treasury and become the joint 
 
Liquor Tax Law 41 
 
 property of its members? The question of sale or traffic in 
 liquors depends upon tke ckaracter of the act. In Grafl: v. Evans, 
 iS Q. B. Div. 373, Field, J., says, a sale involves the elements of 
 a bargain. There must be a buyer and a seller to make a sale 
 of merchandise. The liquors of the club being the common 
 property of its members, they cannot sell it to themselves. There, 
 could be no bargain and sale between them because the money 
 which is paid into the treasury by the men who consume the 
 liquors remains the joint property of all its members. Such a 
 sjstem, it seems to me, lacks the very elements of a bargain and 
 sale. It could not be seriously contended that the members of a 
 family who unite in purchasing a quantity of liquor for their own 
 consumption would violate the statute which prohibits the traf- 
 ficking in liquors without a tax license. The statute uo^rhere 
 prohibits the buying and drinking of liquors. The individual 
 who sells it is the one who trafflcks in the article and not the 
 consumer. The club does not sell or keep for sale any liquors. 
 It keeps on hand liquors which are the common property of its 
 members, to be distributed among them when called for. While 
 the club, as a corporation, may be held liable for the liquors and 
 provisions ordered by its committee for its members, yet that 
 fact does not establish that it is engaged in the traffic or sale of 
 those articles. In the case of The People v. Adelphi Club, supra, 
 •Judge Haight says : " Whilst property and supplies are techni- 
 cally owned by a club, each member is in equity an equal owner 
 in common. The fact that a payment was made does not change 
 the character of the act, for it was but a means adopted by 
 which each member could receive his own and not that of his 
 fellow members. The payment went into the treasury ultimately 
 to restore that which he had taken." I am unable to discover any 
 distinction between the Excise Act of 1892 and the Liquor Tax 
 Act of 1896, so far as it relates to social clubs. The act of 1892 
 prohibits persons from selling liquors without a license. The 
 act of 1896 prohibits persons, corporations,- associations and co- 
 partners from carrying on the business of trafficking in liquors 
 without a liquor tax license. The word " sales " in the act oT 
 1892, and the word " trafficking " in the act of 1896 are words 
 of like significance in their meaning. Section 2 of the act under 
 consideration defines the meaning of the words " trafficking in 
 liquors." It provides that the sale of liquors in quantities of 
 less than five gallons shall be " trafficking in liquors." We have. 
 
4j J »kcisi(j.\s 1{elatii\(. 
 
 tiiereiore, a well-deliued jiieauiug oi' the words " trafficking in 
 liquors " iu tlie act itself, aud it iw jjlain to be seen that it is 
 not aimed at social clubs, but at those who sell liquors for a 
 profit in places of public resort. Sale by retail means sale to 
 any member of the general public who may come to buy, aud 
 the proprietor of a licensed house has no oijfion to refuse to 
 admit the public to his premises during the hours ami days he 
 is legally permitted to sell liquors. 
 
 This club, therefore, being limited in its members and not a 
 place of public resort, could not be licensed to sell liquors. In 
 support of this contention it will be seen that section IS of the 
 act provides that every applicant for a liquor tax license is re- 
 quired to give a bond that he will not kee]i a disorderly house or 
 Iiermit gambling upon the premises. This provision of the 
 statute when taken iu connection with section 21, which requii-es 
 the applicant before coiumenciug business to post up his liquor 
 tax certificate in a conspicuous j)i:ice where the traffic in liquors 
 is carried on, so that all persons \isiting such place may readily 
 see the same, and if there be a window facing the street on the 
 same floor where such business is carried on, such certificate must 
 be displayed from the window so that it may be readily seen from 
 the street. These requirements indicate that the legislature in- 
 tended that the business of tralHcking in liquors, and the places 
 where such trafficking is carried on, should be open to the public, 
 and that all persons should have free access to the same, and 
 that i)ersous who are opposed to entering restaurants and places 
 of amusements wheic intoxicaling li(|uors are sold should have 
 notice by the posting of such tax certificate in the window, that 
 the business of trafficking in liquors is carried on within. Tlie 
 relator's club-house cannot be turned into a place of public 
 resort without forfeiting its charter. Tf it were required to take 
 out a liquor tax license it would be compelled to keep its club- 
 house open to the public, and during the hours when the sale of 
 liquors is prohibited to have no curtains upon its windows, 
 screens or blinds, opaque or coloied glass that would obstruct 
 the view from the sidewalk of the place where liquors are sold or 
 kept for sale, so that the public could have full view of what 
 transpired within. T am constrained, therefore, from the lan- 
 guage of the act to adopt the view that the relator's manner of 
 furnishing liquors to its members does not constitute a sate 
 or the business of trafficking in liquors within the meaning of 
 
Liquor Tax Law 43 
 
 the Liquor Tax Law of l8i)U, cliaptei- 112. Having reached this 
 conclusion, the application to compel the county treasui'er to 
 issue a liquor tax certificate to the relator must be denied and the 
 writ of certiorari quashed, but without costs. 
 
 Ordered accordingly. 
 
 Supreme Court, Monroe Special Term, May, 1896. Reported 17 Misc. 19. 
 Matter of the Application of Frank P. Underbill. 
 
 1. Excise — Liquor Tax Law — Measurement of distance between saloon 
 
 and nearest dwelling. 
 In determiuing whether the distance between the entrance to a saloon 
 and that of the nearest dwelling is within 200 feet, the statute (chapter 
 112, Laws of 1896) does not require the measurement to be taken in a 
 direct line where buildings or parts of buildings intervene, but such 
 measurement should be taken by the most feasible and practicable manner 
 of passing between them, without regard to the sidewalks, and around 
 a corner if necessary. 
 
 2. Same — Entrance to saloon situated in second story. 
 
 Where a saloon is situated in the second story of a building, at the 
 head of a stairway used in common by tenants of the building, the street 
 entrance is the one, within the meaning of the statute, from which the 
 measurement should be made. 
 
 Application to revoke and cancel a liquor tax certiiicate issued 
 to the respondent under the provisions of the Liquor Tax Law, 
 upon the ground that the nearest entrance to the respondent's 
 premises in which he is engaged in the traffic in liquors is within 
 two hundred feet of the nearest entrance to a building or build- 
 ings occupied exclusively for a dwelling, and that the respondent 
 upon making his application for a certificate did not file with 
 his statement a consent in writing executed by at least two-third? 
 of the owners of such buildings that such traffic might be carried 
 on in the place aforesaid. 
 
 Royal R. Scott, for petitioner. 
 
 John Colmey, ior respondent. 
 
 'NAfiu, J. The question presented here is, whether within the 
 meaning and intent of the statute the nearest entrance to the 
 
44 Decisions Eelating to 
 
 prcuiiscs oL' the respondent is within two liundred feet of tlie 
 ue;ii-e,st entrance to a building or buildings occupied exclusi\ely 
 for a dwelling. 
 
 The respondent's premises, in which the ti'aflic in liquors is 
 carried on by him under the certificate which he has obtained, 
 consist of rooms of which he is the lessee occupied by him as a 
 saloon situate in the second story of the building in the village 
 of ^^ictor, known as the Lovcjoy block, the entrance to which is 
 by a covered stairway leading up from the sidewalk below and 
 in front of the building. The stairway is outside of the Lovejoy 
 building and between that and another building known as the 
 Simonds block, the distance between the buildings being the 
 width of the stairway. This stairway is used in common by 
 the occupants of the second floors of both buildings. 
 
 It is c(inleu(kMl on belialf of the respondent that the entrance 
 to his premises is the door of his saloon at the head of the stair- 
 way, and that measuring from that entrance down the stairs and 
 by the nearest feasible way Iroui the foot of the stairs to the 
 nearest entrance of the nearest building exclusively occupied as a 
 dwelling, the distance from the entrance to his saloon is over 
 two hundred feet. But measuring the distance from the door of 
 the saloon through buildings in an air line, the distance is less than 
 two hundred feet f.i several (if the neighboring dwellings. The 
 provision of the statute under consideration should have a reason- 
 able construction, and it would seem that the most feasible way 
 which one could go from the entrance to the saloon to the 
 entrance to a dwelling, not necessarily by the sidewalk, but in 
 an air line where it is practicable, as by going directly or diag- 
 onally across a street or a yard, or around the corner of a 
 building if that is the only way practicable to go from one point 
 to the other, is the way of measurement intended by the legisla- 
 ture; if a direct line from one place to the other in all cases 
 were intended, the law should have so stated. 
 
 As to the question wliich shall be regarded as the nearest en- 
 trance, the door entering the room or the entrance at the foot 
 of the stairway, the case is not so clear. The door at the head 
 of the stairway is the entrance to the respondent's premises. 
 That is the entrance into his saloon from the outside of the build- 
 ing and the only entrance thereto which he owns and has the 
 exclusive control of, the stairway being used in common with 
 the occupants of tlie other building. But the stairway is an 
 
Liquor Tax Law 45 
 
 entrance to his premises, and it also is an entrance which he has 
 the legal right to use and does use. If he had the exclusive use 
 and control of the stairway under the demise of the saloon 
 premises there would, I think, be no question but that the 
 entrance to the stairway would be regarded as the entrance to 
 the respondent's premises and the nearest entrance within the 
 meaning of the statute from which the measurement to the 
 entrances of the dwellings within two hundred feet therefrom 
 should be made. The fact that the demise is of the use of 
 the stairway in common with others makes it no less an entrance 
 to the respondent's saloon. 
 
 The object of the provision of the statute under consideration 
 is to remove places in which traffic in liquors is carried on from 
 close proximity to dwellings. The law fixes two hundred feet 
 between the nearest entrance to the dwelling and the nearest 
 entrance to the premises where the traffic in liquor is carried ou 
 as the limit. These would ordinarily be the street entrances, 
 and were no doubt the entrances which were intended to be taken 
 for the purpose of the measurement. 
 
 I am of the opinion that in this case the street entrance to the 
 respondent's premises is the one, within the meaning of the 
 statute, from which the measurement should be made. If the 
 foot of the stairway is taken as the entrance to the respondent's 
 premises from which to measure to the nearest entrance to a 
 building occupied exclusively for a dwelling, measured in the 
 way already indicated, a direct line over an unobstructed route 
 across the street to the entrance to the premises of Mr. Gallup, 
 and thence directly to the entrance to his dwelling, the distance 
 is less than two hundred feet, and consequently the respondent 
 was not entitled to Liquor Tax Certificate, No. 29,332, issued to 
 him by the treasurer of Ontario county. 
 
 Order revoking and cancelling the same granted; the question 
 being new it is without costs. 
 
 Application granted, without costs. 
 
4G I»E(,MSK)XS Rlor.ATING TO 
 
 Supreme Court, St. Lawrence Special Term, June, 1896. Reported- 
 
 17 Misc. 405. 
 
 The I'eople ex rel. Oelo C. Richardson v. M. E. Sackett, as 
 County Treasurer. 
 
 1. Excise — Liquor Tax Law — Towns in wlnich no license has been 
 
 previously granted. 
 
 Where there are no existing licenses in a town, the county treasurer 
 can not grant certificates in such town until a vote on the question has 
 been taken at a town meeting. . 
 
 2. Same — Character of applicant — Previous conviction cured by pardon. 
 A person who was convicted of a felony many years ago, but has 
 
 received a pardon, is not a convict under the ban of the law, ana should 
 not be refused a certificate solely on that ground. 
 
 Certiorari to review the action of the county treasurer of 
 St. Lawrence county in refusing a liquor tax certificate to the 
 relator, a hotel-keeper in the town of Russell. 
 
 John C. Keeler, for relaijtor. 
 
 L. P. Hale, for county treasurer. 
 
 Rdssell, J. There are various objections which are fatal to 
 the application of the relator for a liquor tax certificate allowing 
 him to sell liquor in his hotel at Russell. The local option 
 provisions given by section 16 (chap. 112 of the Laws of 1896), 
 allow the electors of the town, at a town election, to determine 
 whether liquors shall be sold in that town, and in case of their 
 voting against such privilege, the county treasurer has no right 
 to issue such certificate. 
 
 But in various of the towns of the State, prior to the enact- 
 ment of the Raines Bill, no licenses existed because the commis- 
 sioners of excise, using their discretion, did not approve of 
 granting licenses. In order to provide for the condition of such 
 towns and to guide the county treasurers, before any town 
 election occurring after the passnge of the act should evince the 
 will of the electors of the town, section 16 provides, that in any 
 town in which at the time that act became a law there was no 
 license, it should not be lawful for the county treasurer to issue 
 
Liquor Tax Law 47 
 
 any liquor tax cei'tiflcate, provided by that act, until the town 
 had voted upou the question. 
 
 The provision ^vas e\'idently in harmony with the spirit of tho 
 act allowing the towns to be free from liquor selling under the 
 protection oi the law, if they so chose, and providing a practical 
 method of giving a county treasurer evidence of such determina- 
 tion. Before any vote could be taken at a town meeting, he must 
 be guided by the fact that no license existed. His evidence of 
 such fact could only be the proof that in fact no license had 
 actually been issued to any applicant. It will not, therefore, do 
 for the counsel of the relator to furnish evidence of an inclination 
 on the part of the majority of the commissioners of the town of 
 Eussell to give a license, even if those two commissioners were 
 lawful commissioners of excise, when the fact was that no license 
 had actually been given and none was outstanding, in fact, at 
 the time of the passage of the new Excise Law. 
 
 There are other objections to the application which need not 
 be here considered. I do not place among them as controlling, 
 however, the fact that some eighteen years ago the applicant was 
 convicted of a felony, as he has since received his pardon. It is 
 for the interest of the State that all persons convicted of crime 
 should become law-abiding citizens, and evince by good conduct 
 their desire to become better men. The restoration afforded by 
 a pardon to civil rights covers all civil rights, and I think that 
 one who has become a voter and who might lawfully hold any 
 oflSce can as Avell discharge the responsibility of hotel-keeping^ 
 including liquor selling, and is no longer a convict under the 
 ban of the law. 
 
 In this case the action of the county treasurer is affirmed,with 
 costs. 
 
 Ordered accordingly. 
 
4S Decisions Relating to 
 
 Supreme Court, St. Lawrence Special Term, June, 1896. Reported 
 
 17 Misc. 406. 
 
 The People ex rel. George M. Thomas v. M. E. Sacicbtt^ aa 
 County Treasurer. 
 
 Excise — Liquor Tax Law — Local option. 
 
 A special town meeting may be called and legally held to determine 
 in the first instance whether tax certificates may be given for the selling 
 of liquors In the town. 
 
 Certiorari to review the decision of the county treasurer in 
 refusing a liquor tax certificate to the relator, who is a hotel 
 keeper in the town of Edwards, St. Lawrence county. 
 
 John C. Keeler, fc>r relator. 
 
 L. P. Hale, lor county treasurer. 
 
 EusSELLj J. The sole question to be decided In this case is 
 whether a special town meeting may be called and legally held to 
 determine whether tax certificates may be given for the selling of 
 liquors in the towns of this State. The provisions affecting cities 
 are different from those affecting the various towns upon the 
 question of local option. The counsel for the county treasurer 
 frankly concedes the regularity of the special town meeting held 
 in the town of Edwards, after the passage of the general Excise 
 Law known as the Raines Bill, which voted in favor of selling 
 liquors, and makes no criticism on the fairness of the expression 
 of the voters casting their ballots at such election. 
 
 The new Excise Law differs widely from the previous law in 
 force, and the provision for local option is direct instead of being 
 indirect as under the previous law. Heretofore, commissioners 
 of excise were elected by force of law in each town of the State 
 and the granting or withholding of licenses was within their 
 discretion or caprice. Their views upon the subject, when 
 elected, might be known or unknown, and their subsequent action 
 might or might not follow the inclination supposed to exist when 
 the voters cast their ballots. 
 
 By the new act it is given to the towns to determine by lawful 
 vote whether liquor shall be sold in the respective towns, and the 
 
Liquor Tax Law 49 
 
 county treasurer has no discretion in granting or withholding, 
 other provisions of law being complied with. In many towns ot 
 the State no annual election can be held for nearly a year after 
 the passage of the new Excise Law. I see no provision in the act 
 which contemplates the holding the power of the town, to declare 
 for or against the permission to sell liquors in that town, in 
 suspension during such a period. Its theory is radically 
 different. The power of the various towns upon the subject is 
 coexistent with the force ot the law, and began when that lav* 
 took effect. And, as the subject to be voted upon is one whicli 
 is regarded as affecting the morals and well-being of the com 
 munity, it might well have been the intent of the legislature to 
 allow it, if the electors so chose, to be dissevered from the com 
 plications of an annual town meeting, at which town oflQcei-R 
 are to be elected and various money propositions voted upon, so 
 far, at least, as the first vote upon the subject was to be taken 
 
 Section 16 of the act (chap. 112 of the Laws of 1896) provides 
 . for the subject of local option. It requires the town officers to 
 prepare the ballots "for a town election occurring next after the 
 passage of this act," for voting upon four propositions. 
 
 First. Upon the subject of selling liquor to be drunk on the 
 premises where sold. 
 
 Second. Selling liquor not to be drunk on the premises where 
 sold. 
 
 Third. Selling liquor as a pharmacist. 
 
 Fourth. . Selling liquor by hotel-keepers. 
 
 It would thus seem to be required by law that where a special 
 town meeting is held, after the passage of the act, and before the 
 annual town meeting, perhaps nearly a year later, ballots must 
 be prepared for voting upon the excise propositions. The word 
 "annual" is not prefixed to "town election." And this view is 
 still farther strengthened by the provision in the same section 
 that the same questions shall be submitted again in the same way 
 at the annual town election held in every second year thereafter, 
 provided ten per centum of the voters so request. Unless, there- 
 fore, it is construed that the use of the two expressions was 
 carelessly made by the legislature in the same section, we must 
 presume that they intended that the language should cover any 
 town meeting in the first instance. 
 
 Under the present provisions of law the electors at special 
 town meeting may vote upon any question which may be lawfully 
 4J 
 
50 DKC'ISKIXS J{EI.ATI,\<i T(J 
 
 voted upon or (k'lei-miued at a Kpecial lowu mefting, and that 
 law now /pro\ides lor the mctliod of filing applications for re- 
 quL'.sting a vote at such town meeting; for public notice of the 
 presentation of the question, and the jn-eparation of the ballots 
 therefor. E. «. (Banks' !)th ed.), p. 734, §§ 25, :54, 20. 
 
 The electors of the jState, under the new Excise Act, were 
 confronted with a new state ol things in respect to the vending 
 of liquors. They had the jio-wer in the \;u-ious towns to de- 
 termine whether liquors should be sold or not, within the town, 
 and had the full right to consider how soon, and in what manner, 
 in respect to this important law, their action should be taken. 
 Such power should not be suspended for many months; it should 
 operate as quickly as the law itself. The question of licensing 
 was not to be determined as theretofore by their own town 
 officers acfjuainted with the wishes of the people of the town, but, 
 within certain defined limits, the power to sell liquor could be 
 placed ujion ihem against their will because the oflflcer issuing 
 the certificate had not the power to give or withhold. Thus the 
 right of local option, given by the law, is one which should be 
 used unless the elecloi-s \\eie contented with the conditions likely 
 to be prevalent in the town in respect to the number of places 
 seeking the privileges afforded by the tax certificate. 
 
 Tile principal nrgument against the eonstruction, advanced by 
 tlie counsel of the county treasurer, is the provision that a vote 
 against licensing shall not shorten the term for which any liquor 
 tax certificate may have been given under the provisions of this 
 act, nor alfect the right of any persons thereunder. Section 1(5. 
 He claims that this would disi)Iay a want of mutuality in the 
 effect of the vote, in that if the special town election voted favor- 
 ably to license, such licenses might be granted, while if it voted 
 against licensing, those certificates which had been issued would 
 be i)reserved in force until their expiration. The provision 
 referred to has an evident meaning which sufficiently accounirs 
 for its insertion in the section. It presei-ves the pecuniarj' rights 
 of one who has paid for his privilege, and in that sense is just, 
 as no other provision is made for paying him back for the un- 
 expired term of his certificate. It would have the same effect, 
 if the electors declared against license at an annual town meet- 
 ing, as to the certificate issued shortly ])rior thereto, and no 
 distinction of construction, therefore, existed to point the intent 
 
Liquor Tax Law 51 
 
 of the legislature to distinguish between a special election and 
 an annual one. 
 
 Indeed, the insertion of this language preserving the right of 
 the party holding the certificate, in case the town votes against 
 licensing, rather corroborates the theory of the instantaneous 
 force of the law. The provision is not, that notwithstanding the 
 vote against license the power to issue certificates shall remain 
 until the expiration of any license granted; it solely excludes 
 the idea of granting any more licenses except the one in 
 operation, and which has been paid for, until a period in the 
 future. 
 
 The action of the county treasurer, therefore, must be reversed, 
 with costs. 
 
 Ordered accordingly. 
 
 Supreme Court, St. Lawrence Special Term, June 1896. Unreported. 
 
 People ex rel. Oelo C. Richaedson v. M. R. Saokett, as County 
 
 Treasurer. 
 
 Russell^ J. The relator seeks to review the refusal of the 
 county treasurer to issue to him a liquor tax certificate for use 
 in a hotel in the town of Russell. This town was one in whicli 
 no licenses were granted by the former commissioners and the 
 applicant seeks to justify his request under the present law 
 through the vote of a special town meeting, called for that pur- 
 pose, at which a majority of the ballots were cast in favor of 
 issuing certificates to hotels. One objection made to the 
 application by the county treasurer is that the special town 
 meeting was not properly called and held. It is conceded that 
 this special town meeting was called for two o'clock in the after 
 noon, and the balloting then proceeded which resulted favorably 
 to the granting of such application. The direction of the statutes 
 for holding of town meetings at which ballots are cast requires 
 the polls to be opened at sunrise and continue open till sunset. 
 The design of this provision is to afford electors substantially the 
 whole of the day to deposit their ballots, so that a full expression 
 of the will of the electors may be conveniently had. There is a 
 wide difference between the power of an annual town meeting 
 and that of a special town meeting, the latter being called under 
 the authority of the statute for special purposes, while the annual 
 
Decjsioxs Relating to 
 
 town meeting is the asseml)lase of the constituent members of the 
 municipal corpoiation, clothed with general power and authority 
 to transact business for the town, except as limited by law. At 
 annual town meetings the electors have power to determine where 
 a meeting shall be held and any departure from regularity doea 
 not vitiate the action unless so radical in its character as to be 
 of fundamental variance from the object or design of such 
 meetings. 
 
 In special town meetings, however, the electors act within 
 narrow limits and must proceed without anv substantial departure 
 from the form prescribed where those forms are designed to 
 assure a full vote and opportunity of expression. To narrow the 
 privilege of voting, in the very inception of the steps necessary 
 to call the meeting into existence, to a limit of three or four 
 hours, where the design was to give substantially the whole of the 
 light of day to the electors in going to the place, voting and 
 returning home, in a rural township, is such a substantial 
 departure from the statutory authority and its object that I 
 regard such a meeting as ineffective to adopt a radical change 
 in the policy of the town. 
 
 Xor does it seem as though it was within the province of an 
 executor of a will to obtain a license to sell liquors and carry 
 on the business of a hotel. Assuming that this executor had the 
 power to lease to another who could, or that he had the lawful 
 right of possession so as to enable him personally to carry on the 
 hotel business and sell liquors with entire freedom from penalty 
 and under the protection of the law he should have applied as a 
 person and not as an executor acting in a trust capacity, as it is 
 the design of the la^A- to make the proper conduct of the business 
 a personal liability and as the executor should not have the power 
 to involve the estate as a trustee in the liabilities for the conduct 
 of the business. 
 
 It was the duty of the county treasurer, although acting in a 
 ministerial capacity, to see that the proper steps were taken 
 which justified him in issuing the tax certificate and that the 
 papers upon the application presented the case of a person 
 included in those who by law have the right to apply for a 
 certificate. 
 
 The determination of the county treasurer is, therefore, affirmed 
 with costs. 
 
Liquor Tax La^v 53 
 
 Suprerr.e Court, Washington Special Term, June, 1896. Unreported. 
 
 In tlie matter of the petition ol' Job H. ^\'ilbur to revoke the 
 liquor tax oertiflcate of Nathaniel B. Welling. 
 
 StoveRj J. The (juestion presented is whether, in a town where 
 there had been no licenses issued prior to the time when the 
 Liquor Tax Law took ellect, viz.: ]March 2;j, 189G, the county 
 treasurer is authorized to issue a certificate to one to whom the 
 board ot excise had graated a license after March '2o. 1896, viz. : 
 April 0, 1896. 
 
 The application for cancellation of the certificate was made 
 upon two grounds. First, that there being no license in the town 
 prior to March 23, 1896, the issue of the certificate was 
 unauthorized. Second, that the requisite number of consents of 
 property owners had not been obtained. The latter ground was 
 abandoned or waived upon the return of the order to show cause. 
 An answer was filed, but upon the argument it was conceded 
 that there was no license issued in the town prior to the time 
 when the act took effect, viz.: March 2:;!, 1896, but it is insisted 
 by the holder of the certificate that the town board had a right 
 to grant a license after March 23, 1896, that is, after the Liquor 
 Tax Law became a law, and that such license entitled him to a 
 certificate from the county treasurer, the contention being that 
 the act did not become a law as to the issuing of licenses until 
 the 30th of June, 1896, at which time the act made all licenses 
 expire, that the construction of "shall become a law'' meant so far 
 as it affects persons, and did not mean when the law went into 
 effect as a law. I can see no valid ground for such construction. 
 The legislature had a right to fix a time arbitrarily at which, 
 and beyond which, no license should be issued by the excise board. 
 The intention, evidently, of the law was, that in towns where no 
 license had been issued at the time the law took effect, no licenses 
 or certificates should be granted until the people of the town 
 had voted therefor. Therefoie, and in order to avoid the many 
 complications that might arise, the legislature has said that 
 where there was no license at the time the act became a law, the 
 county treasurer should issue no certificate, except in conformity 
 with the vote of the people. But it is argued that at the election 
 of excise commissioners in March, 1896, a board was elected that 
 would have granted licenses if the old law had continued and 
 
54 Decisidins Eelating to 
 
 tliei-el'ore, that vole must be construed as a. Notc of the people 
 to grant licenses, and that licenses should be granted after the 
 la\\^took effect as well as before, and until June 30th. I can not 
 a-ree with this contention. The language of the statute Is, 
 "wliere there is no license," and that is the test. Had the holder 
 of the certificate proven that there were legally issued licenses 
 or one legally issued in the town, he would be entitled to 
 his certificate, bnl, we cannot, upon an application of this kind 
 go into the mental o])erations of the voters or the excise board. 
 If the construction contended for is to obtain, it all lies in the 
 minds of the excise board. The voters did not vote license or no 
 license, but simply voted for individuals as members of the 
 excise board, and whether license would or would not be issued 
 depended entirely upon the will, unexpressed, and, untrammelled 
 of the excise board. An excise board may have been elected by 
 the voters upon the theory that no license would be granted by 
 them, and yet no power could prevent them from issuing licenses 
 after they had taken their office. And the reverse is equally 
 true; an excise hoard may have been elected with' the under- 
 standing that they would issue licenses, and yet, when they took 
 their office may have concluded that they would not issue any, 
 and no power could compel them to issue licenses. Hence 
 the law has fixed a certain «ay ; it is this: — Where an 
 excise board has legally issued a license prior to the passage 
 of the act, a certificate from the county treasurer may issue, 
 and where such license has not been issued no certificate 
 shall issue. It can be readily seen that if we were to go into the 
 mental operation of the board of excise there would be no end of 
 confusion, because an excise board elected not to grant licenses, 
 might by some pique or some supposed indignity say that inas- 
 much as they were to be legislated out of office that they would 
 grant licenses, and it may be that the legislature intended that 
 the excise board should not have the power after the passage of 
 the act, to grant licenses. At all events, the statute is not 
 .inibiguous; it is clear, and we are not compelled to resort to 
 such methods as the undisclosed mental operations of the excise 
 board. If it were not so the question to be tried upon each cf 
 these applications would be, not whether there was a license in 
 the town or not, but whether the excise board had been elected 
 with the understanding and intention that they would or would 
 not issue licenses. Applications might just as well be made to 
 
LiQDoa Tax Law 
 
 have certitieutes cancelled upon the ground that the excise board 
 Avas elected with the understanding that they would not grant 
 licenses, as that a cei-titicate should be upheld for the reason 
 that they were elected for the purpose of granting licenses. A 
 great many reasons are obvious why the legislature should fix a 
 date as arbitrary as this, beyond which no license should be 
 granted. The fact that there was no license at the time of the 
 pajssage of the act, or that there was, is all that is to be inquired 
 into upon an application for a certificate or for the cancellation 
 of a certificate. The words used in the statute have a clear mean- 
 ing, which has been well understood for years. The language is 
 as follows : "Provided that in any town in which, at the time 
 this act shall become a law, there is no license, it shall not be 
 lawful for the county treasurer, or special deputy commissioner 
 to issue any liquor tax certificate provided for by this act." To 
 justify us in a departure from the ordinary and well settled 
 meaning of such a statute, viz. : that it becomes a law on the date 
 at which it is signed by the Governor, there should be some 
 ambiguity, but I can discover none; it is plain, and while in 
 various ways various things are to be done at certain times, yet 
 there is nothing in the wording inconsistent with the construction 
 chat the legislature meant to fix the time at which the act 
 became a law, and at which a license should be issued in a town 
 in order to entitle the holder of a license to the county treasurer's 
 certificate. And it can readily be seen why, in the brief time that 
 elapsed from the time it became a law until all the functions of 
 the excise board ceased, that the powers of the excise commis- 
 sioners should be restrained a,nd abridged, and that in towns 
 where no license had been issued prior to that time, the same 
 status should be preserved until the people had, by their votes, 
 sanctioned a change. 
 
 I think the certificate issued by the county treasurer was 
 unauthorized, and should be revoked and cancelled. 
 
50 Decisions Relating xo 
 
 Third Appellate Department, June, 1896. Reported 6 App. Div. 271. 
 
 Alexander Balogh^ Appellant, v. Hbxry H. Lymax, as State 
 Commissioner of Excise, RcHpondent. 
 
 Liquor Tax Law — In part a revenue law — An existing licensee can not 
 procure an injunction to prevent its enforcement. 
 
 The complaint and affidavit made in an action brought to procure an 
 Injunction, al-leged that the plaintiff was a retail liquor dealer, possessing 
 a valid license unrevoked and unforfeited; that, under the "Liquor Tax 
 Law" (Chap. 312 of the Laws of 1896), it was provided that the license 
 should cease on the 30th day of June, 1896, unless he paid a further sum 
 of money and gave a bond in double the amount of the additional pay- 
 ment; that if the plaintiff failed to do this and continued the business, 
 it was made by statute the duty of the defendant to arrest, prosecute 
 and enjoin the plaintiff from further carrying on business. The plalntifl 
 then alleged that he would not be able to pay the tax nor to give the 
 bond for the reason that he was largely indebted, and he further stated 
 that the enforcement of the law would work irreparable injury to him, 
 for which he had no adequate remedy at law, and that It would involve 
 him in a multiplicity of actions, both civil and criminal. He further 
 alleged that the law was unconstitutional, and asked that an Injunction 
 issue restraining the defendant from interfering with him or his business. 
 
 Held, that an Injunction was properly refused; 
 
 That the 13th section of the law indicated that its purpose was, in part 
 at least, to raise revenue to be paid in certain proportions to the State 
 and to the towns and cities thereof; 
 
 That it was a rule of public policy that courts would not Interfere by 
 Injunction to restrain the collection of a tax unless the case was brought 
 within some acknowledged head of equity jurisprudence, nor enjoin its 
 collection on the ground that the statute purporting to authorize the 
 tax is Invalid unless the invalidity of the statute had been previousl> 
 decided; 
 
 That an injunction would not be granted to restrain the defendant and 
 his agents from making an arrest for an alleged violation of an existing 
 law; 
 
 That injunctions are granted to restrain the enforcement of a revenue 
 law only In exceptional cases where such enforcement would cause a 
 multiplicity of suits or Irreparable injury, or where there exists no 
 adequate remedy at law; 
 
 That in the present case there was no reason to suppose that more 
 than one proceeding would be necessary to test the validity of the present 
 law; that if the plaintiff was arrested or enjoined he would have an 
 opportunity to be heard and to raise the question as to the constitution- 
 ality of the law, while if the defendant interfered with him in any other 
 way an action would lie against the defendant, provided the law under 
 which he acted was unconstitutional. 
 
Liquor Tax Law 57 
 
 Appeal by the plaintiff, Alexander Ealoyli, from an order of 
 the Supreme Court, made at the Albany Special Term and 
 entered in the otHce of the clerk of the county of Albany on the 
 2Stli day ot April, ISDG, denying his motion for a temporary 
 injunction. 
 
 William B. Doniliee and Charles Haldane for the appellant. 
 
 T. E. Hancock, Attorney-General, and TT'. E. Kisselhurgh, Jr., 
 for the respondent. 
 
 Herrick^ J. : 
 
 This is an appeal liom an order of the Special Term denying a 
 motion for a temporary injunction. 
 
 The plaintiff alleges in his complaint that he is a citizen of 
 the United States and a resident of the State of New York. That 
 on the 21st day of March, 1896, the board of excise commissioners 
 of the city of New York in conformity with chapter 401 of the 
 Laws of 1892, as amended by chapter 480 of the Laws of 1893, 
 granted him a license to conduct the business of a retail dealer 
 in intoxicating liquors at 103 Second avenue, in the city of New 
 York, for which he paid the sum of |250 ; that such license has 
 never been revoked, and that the plaintiff has never done any- 
 thing for which it should be forfeited. That by section 4 of 
 chapter 29 of the General Laws, which became a law on the 
 23d day of ^March, 1896, it is provided that after the 30th day 
 of June, 1896, the plaintiff's right to continue in the business of 
 a retail dealer in intoxicating liquors shall absolutely cease 
 and determine unless the plaintiff shall pay to the defendant's 
 duly appointed deputy such further sum of money as, computed 
 at the rate of |800 per annum, would cover the period extending 
 from the 1st day of July, 1896, to the 30th day of April, 1897, 
 and shall furnish a bond in the sum of $1,600 conditioned as 
 required by section 18 of said law, and in case of plaintiff's 
 failure to comply with said requirements, and continuing in such 
 business after the 30th day of June, 1896, it is made the dutv 
 of the defendant, his deputies and special agents, to enter upon 
 plaintiff's premises and daily arrest and prosecute plaintiff, and 
 to procure an injunction restraining him from continuing in said 
 business. 
 
 The plaintiff further alleges, upon information and belief, that 
 he will not be able to pay the tax required by said law on the 
 
58 Dectsions Relatin(; to 
 
 30tU day of June, 189G, or to furnisli the bond required, .and 
 tliat the enforcemeut by the delendunt, his deinrlies and agents, 
 aj^ainst the phiintitl, ol' the provisions and iicnaKies in said 
 chapter 2!», will work irreparable injury to plaintitt', for which 
 he has no a(le(juate remedy at law; involving him in a multi- 
 plicity of civil and criminal aclions in order to determine his 
 rights; aud further alleges, upon information and belief, thai 
 so much of section 4 of cliaiiter -It, above referred to, as cancels,, 
 annuls and determines on llie ;i(ltli day of June, lS!)(j, the license 
 granted to plaintiff by the said board of excise is repugnant to 
 section 1 and section C of article 1 of the Constitution of the 
 State of New York, and to section 10 of article 1 of the Con 
 stitutiou of the United States, and to the 14th amendment to 
 said Constitution; and he asks relief that such portion of section 
 4 of chapter 1!0 of the General Laws be declared null and void, 
 and that the defendant, his deputies and agents, be enjoined from 
 in any way interfering with plaintiff in his business of a retail 
 dealer in intoxicating liquors until after the 21st day of !March 
 1897. In an affidavit attached to the complaint the 
 plaintiff reiterates the statements of the complaint and sets forth 
 his financial condition, showing that he has no means excepting 
 the furnishings and fixtures in his place of business and stock of 
 goods, and that he is largely indebted thereon, and that if 
 the provisions of the law complained of are enforced, he will 
 be without any means to pay the tax and be left heavily in debt. 
 There is no answer to plaintiff's complaint or affidavit upon the 
 part of the defendant. 
 
 The act designated in the complaint as chapter 29 of the 
 General Laws is published in the official series of the reports 
 of the Session Laws as chapter 112 of the Laws of 1896. It will 
 be observed that a portion of the plaintiff's complaint is his 
 construction of the meaning and effect of section 4 of such act. 
 The act provides for the piiymeut of a fee by those desiring to 
 engage in the sale of intoxicating liquors, without the payment 
 of which such trallic is made unlawful. The 13th section 
 provides that the moneys receixed under the i)rovisions of the 
 act shall be paid one-third "to the Treasurer of the State of 
 Xew York, to the credit of the geiuM-al fund, as a part of 
 the general tax revenue of the State, and shall be appro- 
 priated to the ]iayiiicnt of the current general expenses of 
 the State, and the remaining two-lliirds thereof, less the 
 
Liquor Tax Law 59 
 
 amount allowed for collecting the same, shall belong to the 
 town or city in which the traflflc was carried on from which tho 
 revenues were received, and shall be paid by the county treasurer 
 of such county, and by the special deputy commissioners to the 
 supervisor of such town, or to the treasurer or fiscal oflicer of 
 such city ; and such revenues shall be appropriated and expended 
 by such to^^'n or city in such manner as now or may hereafter 
 be provided by law for the appropriation and expenditure of sums 
 received for excise licenses or in such other manner as may here- 
 after be provided by law." 
 
 Whether we regard the law in question as strictly a tax law 
 or not, it is evident that one of its results, if not one of its 
 purposes, is to raise a revenue to assist in defraying the expenses 
 of State and local government, and it is to an extent at least to be 
 regarded as a revenue law. Therefore, the same objections appiy 
 to any efforts to stop its enforcement and prevent the collection 
 of the revenue expected to be derived therefrom as are to be made 
 to the enforcement of any other tax or revenue law. 
 
 The defendant is the State ofiBcer who is charged with the en- 
 forcement of this law; the method provided for its enforcement 
 is by obtaining injunctions restraining persons who have not 
 complied with its provisions from trafficking in intoxicating 
 liquors, and also by causing their arrest in criminal actions for 
 not complying with its provisions. The plaintiff is, therefore, 
 seeking to restrain the State officer charged with enforcing a 
 revenue or tax law from employing the means provided by the 
 statute for the enforcement and collection of the fee or tax 
 provided for by the -law in question. 
 
 The rule is well settled that the courts will not interfere 
 by injunction to restrain the collection of a tax, unless the case 
 is brought within some acknowledged head of equity juris- 
 prudence. The rule is one of public Tpolicy. {Western R. R. Co. v. 
 Nolan et al., 48 X. y. 513; D. & H. G. Co. v. Atldns, 121 id. 246.) 
 
 It has been held that an injunction will not lie to restrain the 
 collection of a tax on the ground that its assessment is illegal. 
 {Susquehaniin Banlc v. SupciTisors. 25 N. Y. 312; Comins v. 
 -Supervisors, G4 id. G26. See also, Mesich v. Board of S'liprrvisors, 
 50 Barb. 190; R., W. d- 0. R. R. Co. v. Smith, 39 Hun, 332; 
 Matter of Bridgeford, 6o id. 227; Mutval Benefit Life Insurance 
 Co. V. Supervisors. 20 How. Pr. 416; Betts v. Citii of Willianis- 
 hurgh, 15 Barb. 255.) 
 
60 Decisions Relating to 
 
 As stated before, the rule is one ol' public poIic3'. The collection 
 of revenue is necessary for the niainlenance of the f;overnmentj 
 appropriations for the support of the State government are made 
 in reliance upon its collection. "If there existed in the courts, 
 State or National, any general power of impeding or controlling 
 the collection of taxes, or relieving the hardship incident to taxa- 
 tion, the very existence of the government might be placed in the 
 p((\ver of a hostile judiciary." ( Cheatham v. Viiited States, 92 
 V. 8. 85-89. See also, Doiis v. Citij of Chicago. 78 id. 108; 
 HanncirinlcJc v. (Icorf/vtoini. 82 id 547.) 
 
 It has also been held that an action to restrain a prosecution 
 for the collection of penalties imposed by statute, on the ground 
 that the statute is invalid, can not be mainta,ined, unless the 
 invalidity of the statute has previously been decided. {Wallack 
 V. Society, 67 N. Y. 2.3.) 
 
 The injunction prayed for is that the "defendant, his deputies 
 and agents jnay be enjoined from in any way interfering with 
 plaintiff in his business of a retail dealer in intoxicating liquors 
 carried on," etc. The only way provided by the law for such 
 interference is by obtaining an injunction restraining the plaintiff 
 from carrying on such business, or by causing his arrest for so 
 doing. The relief then asked by the plaintiff in effect is to enjoin 
 the defendant, his deputies and agents, from causing the arrest 
 of the plaintiff for c-^lleged violation of the law, and to enjoin 
 them from making any application for an injunction to restrain 
 him from dealing in intoxicating liquors. 
 
 It has been held that an injunction may not be had to restrain 
 an officer from making an arrest for alleged violation of law. 
 {Davis V. America)! Society, 75 N. Y. 362.) 
 
 It seems to me unnecessary to cite any authority to show an 
 injunction ought not as a rule to be granted to restrain a person 
 from making an application to the court to procure an injunction. 
 An injunction to restrain the procuring of an injunction would 
 be rather an anomalous judicial proceeding. 
 
 By a careful reading of the cases holding that injunctions 
 should not be granted restraining the enforcement of revenue 
 laws. It will be seen that they qualify the rule by excepting there- 
 from cases where the enforcement of such laws will lead to a 
 multiplicity of suits, or where irreparable injurv would result, 
 or where the plaintiff has no adequate remodv bv the ordinary 
 process of law. Before an injunction should be granted in these 
 
Liquor Tax Law 61 
 
 exceptional cases it should be made clearly to appea,r to the court 
 that it is such au exceptional case. 
 
 The plaintiff's statement in his complaint that the enforce- 
 ment of this law will expose him to a multiplicity of suits I do 
 not think can he held to be a statement of fact, but rather of the 
 plaintiff's conclusion, and in that conclusion I can not agree with 
 him that such will be the necessary effect of the enforcement of 
 the law by the defendant. 
 
 A single proceeding will test the legality of the law, and it is 
 not to be assumed that the defendant will harass and annoy the 
 plaintiff' with unnecessary litigation. 
 
 The only way in which the plaintiff' alleges that he may be 
 damaged is by an injunction obtained against him to prevent the 
 sale of liquors without procuring a new license or certificate, or 
 by being arrested in criminal proceedings. Neither he nor his 
 property can be seized, or his business interfered with except by 
 due process of law. If proceedings are taken to procure an 
 injunction against him he will have notice and an opportunity to 
 be heard, and make the same contention as to the constitutionality 
 of the law in question that he seeks to make here. A criminal 
 proceeding can only be taken against him in a court of record 
 (§35), where again he will have an opportunity to assert the 
 illegality of the law, so that under the ordinary forms ot 
 procedure, both in our courts of equity and of law, the plaintiff 
 has the means of protecting himself from injury. 
 
 If the defendant interferes with the plaintiff in any other way, 
 to his damage, an action may be maintained against him, if the 
 law under which he acts is unconstitutional. {V. L. T. Co. v. 
 Grant, 137 N. Y. 7.) 
 
 The order denying a motion for a preliminary injunction should 
 therefore, be aflSrmed, with ten dollars costs and disbursements. 
 
 All concurred in result. 
 
 Order affirmed, with ten dollars costs and disbursements. 
 
(ii; Decisions Relatixg to 
 
 First Appellate Department, June Term, 1896. Reported. 6 App Div. 520. 
 
 The I'looPLE of the State of New York ex rel. Benjamin 
 Bassett, Appellant, i'. The Warden of the City Prison of 
 THE City of New York, Respondent. 
 
 Liquor Tax Law — Constitutionality of the provision prohibiting the giving 
 away of food to be eaten upon premises where liquor is sold — 
 It applied to existing licensees. 
 
 The power of the Legislature to regulate the traffic In liquor includes 
 the power to determine the premises upon which liquor shall be sold and 
 for what other uses the premises shall be used. 
 
 The provisions of the Liquor Tax Law, forbidding persons to give awaj 
 any food to be eaten on premises where liquor is sold, are a proper 
 exercise of this power and do not deprive such persons of either liberty 
 or property within the meaning of the State or Federal Constitutions. 
 
 It was not the intention of the Legislature to except any class or any 
 individual from the operation of this ' prohibition, and it applies to 
 licensees whose licenses were in force when the act went into effect, and 
 governs their conduct during the continuance of the term of such licenses. 
 
 There is nothing in any provision of sections 4, 9 and 44 of the Liquor 
 Tax Law which relieves a licensee, holding an unexpired license at the 
 time when this act took effect, from the operation of this prohibition 
 during the unexpired term of such license. 
 
 Api'EAL by the relator, Benjamin Bassett, from an order of the 
 Supreme Court, made at the New York Special Term and entered 
 in the office of the clerk of the county of New York on the 13th 
 day of April, 1896, dismissing a writ of habeas corpus granted 
 in the action and remanding the relator to the custody of the 
 respondent. 
 
 Samuel Vntcnnijcr and Louis MarsluiU, for the appellant. 
 
 George Gordon Baltic, for the res])ondent. 
 
 Ingraiiam^ J. : 
 
 The relator was arrested and held for violating subdivision e 
 of section 31 of chai>tcr 112 of the Laws of 1S9(>, known as the 
 Liquor Tax Law. It is there provided that it shall not be lawful 
 for any corporation, association, copartnershiji or person, 
 whether having paid such tax or not, "(o sell or expose for sale or 
 have on the premises where liquor is sold any li(]uor which is 
 
Liquor Tax Law 63 
 
 adulterated with any deleterious drug, substance or liquid which 
 is poisonous or injurious to health, or to gi\e away any food 
 to be eaten on such premises." By section 4:") it is provided that 
 the act shall take effect immediately. Thus by subdivision e of 
 section 31 the act of giving away food to be eaten on premises 
 where liquor is sold is declared unlawful. There is no quali- 
 fication to this provision, nothing to justify the court in saying 
 that it was the intention of the Legislature to except any class 
 or individual from the operation of this prohibition, but the 
 plain provision is that it shall not be lawful for any one, whether 
 having paid a tax under the provisions of the act or not, to give 
 away food to be eaten on premises where liquor is sold. 
 
 The appellant, however, insists that certain other sections of 
 the act indicate that it was not intended that siibdivisiou e of 
 section 31 should apply to those holding licenses which were in 
 force when this act took effect, during the continuance of the 
 term of such licenses. The three sections relied on by the 
 appellant are sections 4, 9 and 44 of the act. By section 4 it is 
 provided that every license granted before the passage of the 
 act, "which is valid when this act takes effect, shall be, and 
 remain, valid for the term for which it was granted, except as 
 herein provided, unless sooner canceled under the provisions of 
 the law under which it was granted, and the rights and liabilities 
 of the holder thereof during such term shall be governed by the 
 laws in force immediately prior to the taking effect of this act, 
 except as otherwise expressly provided in this act, but such 
 license shall cease, determine," etc. There is nothing in this 
 section that prescribes what act shall or shall not be lawful for a 
 person holding a license. It is true that the rights and liabilities 
 of the holder of a license must be governed by the laws in force 
 immediately prior to the taking effect of this act, but it does not 
 say that he may do acts which are declared by the express pro- 
 visions of this law unlawful. The license granted to the ap- 
 pellant, and which was in force at the time this act took effect, 
 did not, directly or indirectly, either authorize him to sell or 
 give away food or prohibit him from selling or giving away 
 food upon the premises. He acquired no right by virtue of that 
 license, except to engage in the sale of liquor to be drunk on the 
 premises in the city of New York during portions of each day 
 except Sunday; and his rights and liabilities under that license 
 were to be governed by the law under which the license was 
 
(i-1 Decisions Relating; to 
 
 grault'd, except as otherwise expressly provided for in the new act. 
 But whether or not an aet distinct from the sale of liquor was a 
 crime, it could hardly be said to be one of the rights or liabilities 
 under the lieeuse, and as the statute itself expressly provided 
 that no one should give away food upon premises where liquor is 
 sold, it would come within its provisions as an act which was 
 ex]iressly prohibited. 
 
 ■\\'e do not think that section 9 applies at all, as it merely 
 refers to the duty of the sperial deputy commissioners in certain 
 counties. Such special deputies are required to perform all the 
 duties theretdfore conferred upon boards of excise or excise com- 
 missJDuers under any law rei»ealed by the act during the con- 
 tinuance of any license theretofore granted, as to the transfer, 
 surrender or revocation thereof, or as to prosecuting offenders 
 for violation of law under any law existing immediately prior to 
 the jiassa^e of this act. As the boards of excise were abolished, 
 it was made the duty of the new deputy commissioners to per- 
 form all of the duties of the old boards of excise as to crimes 
 whicli had been eoniinitted pri(u- to the passage of the act, or 
 in violaiiiin ot the laws existing; immediately prior to the passage 
 of the aet in question, sf» far as the same should continue in force, 
 until llie licenses granted under them had expired. There is 
 nothing that could lie in any way construed as providing for 
 what shall or shall not be lawful after the passage of the act. 
 
 The section ju'lncipally relied upon by the appellant is section 
 44, which contains a repealing clause, by which certain acts 
 in force for the regulation of the liquor traffic are repealed, 
 Mith a saving clause regulating such repeal. The provision 
 relied on liy the appellant is: "Of the laws enumerated 
 in the schedule hereto annexed, that portion specified in 
 the last column is repealed, but the provisions of any such 
 relating to the transfer, cancellation or revocation of a license, 
 the collection of penalties or prosecutions for the violation of 
 the law, shall continue in force as to any license which has nor 
 expired at the time this act takes effect, until the expiration 
 thereof." There is nothing in this section, however, that de- 
 termines what is or what is not a violation of law, nor Is there 
 anything limiting the exjiress provisions of section 31, whicli 
 makes certain acts therein specified unlawful. 
 
 It is true that the provisions of any law in force relating to 
 the infliction of penalties, or to prosecutions for violations of 
 
Liquor Tax Law 65 
 
 the law, continue in force as to any license which has not expired, 
 but our attention is not called to any provisions of law in force 
 at the time that either prohibited or authorized the holder of a 
 license to give away food to be eaten on the premises upon which 
 he carried on his business. Assuming that it was the intention 
 of this saving clause to continue all the provisions of law as to 
 the authority granted by the license, and as to the prohibitions 
 contained in the existing laws in force as to any license which 
 had not expired, the existence of such laws would not be at all 
 inconsistent with the operation of section 31. While several of 
 the acts therein prohibited were not illegal under the existing 
 laws, they are declared illegal by this section ; but us none of 
 them was expressly authorized by existing laws, or came within 
 the purview of existing licenses, the mere continuing in force 
 ol such existing laws would not be at all inconsistent with the 
 enforcement of the prohibition contained in section 31 of the 
 act. Reading these three sections together, the intention is clear, 
 namely, that during the time the license was to continue the 
 licensee was to be allowed to do what the license expressly 
 authorized him to do, but in all other rcsjiects he was to be 
 subject to the provisions of the act. 
 
 Tlie relator also claims that this provision is in violation of 
 Icth the State and Federal Constitutions; that it violates section 
 6 of article 1 of the Constitution of this State and the fourteenth 
 amendment of the Federal Constitution, the relator claiming 
 that, by this provision, which prevents him from giving away 
 food to persons, to be eaten tipon the premises upon which he 
 sold liquor, lie might be deprived of liberty or property without 
 due process of law. There can be no doubt of the power of the 
 legislature to regulate the traffic in liquor, and the power to 
 regulate must include the power to determine upon what 
 premises liquor shall be sold, and what other use shall be made of 
 such premises. Neither the liberty nor property of this relator 
 was at all interfered with by the provision prohibiting him from 
 using the premises in which he sold liquor for the gratuitous 
 distribution of food. He could give away all the food that he 
 pleased at other places. Neither his liberty to do what he 
 pleased with his food, nor his property in the food itself, or 
 power of disposition of it, was at all interfered with. All that 
 was included in the provision was that these premises, used at 
 the time for the sale of liquor, whether under a license or under 
 .5 
 
66 Decision H Bblatino to 
 
 the authmity coutaiot'd in the act for the payment of the tax,, 
 should not be used at the same time for the giving away of food 
 to he tiiere eaten. 
 
 It ie entirely clear that this was a reasonable regulation of the 
 iisse of the preinises in which liquor was to be sold, and entirely 
 within the power of the legislature. 
 
 Our conclusion is, therefore, that the order appealed from 
 siiduld be affirmed, with costs. 
 
 M^ir.LiAMS, O'Brien and Paltkkson, JJ., concurred; Van 
 EruT^T, P. .J., dissented. 
 
 Order affirmed, witli costs. 
 
 U. S. Circuit Court, Northern District of New Yorl<. Reported. 74 
 
 Fed. Rep. 765. 
 
 Wir.r.iAM .1. KiiKsSKR v. Henry H. Lyman, as State Commissioner 
 
 of Excise. 
 
 Wallace, ("iixiiit Judge. 
 
 Tlie ])laintitf having brought suit to restrain by permanent 
 injunrlion ilic cnlorcement of the provisions of the act of the 
 (.(■jiisiature of the State of New York, approved March 23, 1896, 
 eutitlcd "An Act in relation to the traffic in liquors, for the taxa- 
 tion and regulation of the same, and to provide for local option,"' 
 commonly known as the Raines Law, has applied for an injunction 
 pendent I- lite. His action proceeds upon the theory that the 
 license granted to him February 10, 1896, in consideration of the 
 payment of .1i;200. for the term of one year from that date, by the 
 board of excise of the city of Albany, pursuant to authority con- 
 ferred upon them by chapter 401 of the Laws of the State of New 
 York of 1892, entitled : "An Act to revise and consolidate the laws 
 regulating the sale of intoxicating liquors," is a contract investiug 
 him with the right to conduct the business of a retail dealer iu 
 spirituous liquors, wines, ale and beer, at the place specified, until 
 the expiration of the term ; and that those provisions of the act of 
 1896 which declare that every license heretofore lawfully granted 
 by a board of excise "shall cease, determine and be void after 
 June 30, 1896," and whereby he and others similarly situated are 
 required to make application for a liquor tax certificate and pay 
 
Liquor Tax Law 67 
 
 a tax at the rate of $500 per annum from July 1, 1896, and in 
 case of default are liable to arrest by the defendant as State 
 CJomraissioner of Excise, and to fine and imprisonment, are 
 repugnant to the Constitution of the United States, and as to him 
 are void as impairing the obligation of a contract and depriving 
 him of his property without due process of law. 
 
 The conclusion that these provisions are not obnoxious to the 
 Constitution seems so plain that the objection urged in behalf of 
 the defendant that no special circumstances appear bringing the 
 case within any of the recognized exceptions to the rule that a 
 court of equity will not interfere by injunction to prevent the 
 collection of a tax merely upon the ground of its illegality, or 
 because the statute under which it is imposed is unconstitutional, 
 will not be considered. 
 
 The argument for the plaintiff, deduced from a consideration 
 of the various provisions of the pre-existing statutes that the 
 license granted to him is a contract which can not be destroyed 
 or impaired by subsequent legislation by the State and the 
 privilege conferred by it a property right of which he cannot be 
 deprived without due process of law, and just compensation, 
 necessarily assumes the comiaetency of the State through its 
 legislature and administrative officers to enter into a contract 
 hampering the future action of the State in the exercise of its 
 police power to regulate, restrict or prohibit the traffic in 
 intoxicating liquors. If this competency is wanting no form of 
 words, whether expressed in a legislative act, or otherwise, can 
 create a valid contract. That the State can not barter away or in 
 any manner abridge any of those inherent powers of government 
 the complete and untrammelled exercise of which is essential to 
 the welfare of organized society, and that any contracts to that 
 end are void upon general principles, and can not be protected 
 by the provisions of the national Constitution, are propositions 
 which are abundantly settled by the decisions of the highest 
 federal tribunal. Without attempting an extended reference to 
 these adjudications it will suffice to refer to two decisions of the 
 Supreme Court of the United States. In Beer Company v. 
 Massachusetts (97 U. S. 2.5), the question was, whether under the 
 prohibitory liquor law of Massachusetts of 1869, the seizure and 
 forfeiture of liquors belonging to the company was lawful in view 
 of the charter of the company granted by legislative act in 1828, 
 Investing the company with the right to manufacture and sell 
 
(IS I»i-;risioNS Relating to 
 
 siu-li li.)iioivs; the contention licin^ that the subsequent act im- 
 pjiii-ed the obligation of the contract contained in the charter and 
 was void so lar as the liquors in (|iK'stion were concerned. The 
 court in dc'cidiiii> agaiiisl this coutciition declared the principle:, 
 that all rights are held subject to the police j)0wer of a state, 
 ami il' the public salVly or the public morals require the discon- 
 tinuance of anv manufacture or traffic, the legislature may 
 ap]>ro\c accoi-dingl.v, notwithstanding individuals or corporations 
 iiiav thereby sutler inconvenience; and that as the police power 
 of a state extends lo the ]irotection of the lives, health and 
 f)ropcrt.v of licr citizens, the maintenance of good order and the 
 preservation of the i)ublic morals, the legislature can not bv any 
 contract divest itself of the power to provide for these objects. 
 The ("onrt said: "The jdaintiflf in error boldly takes the ground 
 that, lieing a coi poratioii, it has a right by contract, to manufac- 
 ture and sell beer forever, notwithstanding and in spite of any 
 exigencies which may occur in the morals or the health of the 
 community, requiring such manufacture to cease. We do not so 
 nndeistand the rights of the plaintiff. The Legislature had no 
 |iii\\<M- to confer any such rights." In >T.'ne r. Mississippi (101 
 r. S. Ml), ilic Legislature of M's-^'s^^ppi had granted a charter 
 to a lottery ( ompany in consideration of a sripulated sum in cash, 
 and annual further paymeius and dnring the life of the charter 
 the Si:iic adopted a new coiistitntion prohibiting the sale of 
 lottery ticlcets or the drawing of any lottery theretofore author- 
 i/i'd; ;in<l the (juestion was whether the rights and franchises of 
 the lottery com])any were impaired by the new constittitional 
 jirovision and an act of the legislature to effectuate it prohibiting 
 all kinds of lotteries within the State and making it unlawful to 
 conduct one. The Court said: "If the Legislature that granted 
 tin's charter had the power to bind the people of the State and all 
 succeeding Legislatures to allow the corporation to continue its 
 corporate bnsini'ss during the whole term of its authorized 
 existence, there is no doubt about the sufficiency of the language 
 cmjiloyed to effect that object, although there was an evident 
 puti;ose to conceal the vice of the transaction by the phrases that 
 were used. Whether the alleged contracts existed therefore, or 
 not, depends on the authority of the Legislature to bind the State 
 and the ]ieoiile of the State in that way. All agree that the 
 Legislature can not bargain away the police power of a State. 
 Irrevocable grants of property and franchises may be made if they 
 
Liquor Tax Law 69 
 
 do not impair the supreme authority to make laws for the right 
 government of the State ; but no legislature can curtail the power 
 of its successors to make such laws as they may deem proper in 
 ma.tters of police. Any one, therefore, who accepts a lottery 
 charter does so with the implied understanding that the people 
 in their sovereign capacity and through their properly constituted 
 agencies, may resume it at any time when the public good shall 
 require, whether it be paid for or not. All that one can get by 
 such a charter is a suspension of certain governmental rights in 
 his favor, subject to withdrawal at will. He has in legal effect 
 nothing more than a license to enjoy the privilege on the terni^) 
 named for the specified time, unless it be sooner abrogated by the 
 sovereign power of the State. It is a permit, good as against 
 existing laws, but subject to future legislative and constitutional 
 control or withdrawal." 
 
 The regulation of the liquor traffic is an exercise of the police 
 power of the State for the prevention of intemperance, pauperism 
 and crime. ' The courts have sanctioned the validity of most 
 stringent statutes enacted in that behalf, such as those which 
 declare the liquor kept for sale a nuisance, which authorize its 
 condemnation and destruction, and which provide for the seizure 
 and forfeiture of the building in which it is sold. Speaking of 
 such statutes. Judge Cdoley uses the following language: 
 "T'erhaps there is no instance in which the power of the Legisla- 
 ture to make such regulations as may destroy the value of 
 proi)erty, without compensation to the owner, appears in a more 
 striking light than in the case of these statutes. The trade in 
 alcoholic drinks being lawful, and the capital employed in it 
 being fully protected by law, the legislature then steps in, and, 
 by an enactment based on general reasons of public utility, 
 annihilates the traffic, destroys altogether the employment, and 
 reduces to a nominal value the property on hand. Even the keep- 
 inu of that, for the purpose of sale, becomes a criminal offense; 
 and, without any change whatever in his own conduct or employ 
 ment, tlie merchant of yesterday becomes the criminal of to-dav, 
 and the very building in which he lives and conducts the biisiness 
 whicli to that moment was lawful, becomes the subject of legal 
 yiroceedings if the statutes shall so declare, and liable to be 
 proceeded against for a forfeiture. A statute which can do this 
 must be justified upon the highest reasons of public benefit; but 
 whether satisfactorv or not, the reasons address themselves 
 
70 Decisions Kelating to 
 
 exclusively id the legislative wisdom." Cooley's Constitutional 
 Limit;! tioiis, p. 720. 
 
 The Court of Appeals of this State in Metropolitan Board of 
 Exeise V. Barrie (34 N. Y. 659) in considering the general ques- 
 tion now involved declared : "These licenses to sell liquor are not 
 contracts between the State and the persons licensed, giving the 
 latter vested rights protected on general principles and by the 
 United States Constitution against subsequent legislation, nor 
 are they property in any legal or constitutional sense. They have 
 neillior the qualities of a contract or of property, but are merely 
 temporary permits to do what otherwise would be an offense 
 against a general law. They form a portion of the internal police 
 system of the State, are issued in the exercise of its police powers, 
 and are subject to the direction of the State government, which 
 may modify, revoke or continue them as it may deem fit." 
 
 It is urged for the plaintiff that the act of 1896 is not a police 
 regulation, but is a taxing act, but the contrary has been decided 
 by the Court of Appeals in the recent judgment in People v. 
 Murray. The Court said: "The character of the act of 1896, 
 whether a tax law in a inojier sense, or a law enacted under the 
 jiolice power, must be determined from its whole scope and tenor, 
 and there can be no reasonable doubt, we think, that it is of the 
 hitter character.'' 
 
 Vftv these reasons, the conclusion is reached that, notwithstand- 
 ing his license, the plaintiff would be without remedy if the 
 legisladire had absolutely prohibited the sale of liquors in this 
 State after th(> oOth day of June. Instead of doing this, it has 
 required him after that date to conduct his traffic under 
 precisely the same conditions which are prescribed for all others, 
 but for the purjiose of saving his rights and those of others 
 similarly situated, has authorized a recovery from the town or 
 city in which the license was granted of such proportion of the 
 \\li(,)le license fee as the i^emainder of the time for which said 
 license would otherwise have run bears to the whole period for 
 which it was granted. He has no just ground for complaint. 
 
 The motion is denied. 
 
Liquor Tax Law 71 
 
 Supreme Court, Kings Special Term, July, 1896. Reported 18 Misc. 341. 
 
 Matter of the Application of Charles Ritchie for Bevocation of 
 Liquor Tax Certificate of Adolph Samuely. 
 
 Excise — Consent of owners of neighboring dwellings — Exception. 
 
 An abandonment of premises by the person who carried on a liquor 
 business thereon at the time the Liquor Tax Law took effect deprives 
 the premises of their privileged character under the exception in sub- 
 division 8 of section 17 of said act, and a subsequent applicant for a 
 certificate must obtain the consents of two-thirds of the owners of 
 dwellings situated within 200 feet. 
 
 AMPLICATION by Charles Ritchie for revocation of liquor tax 
 certificate. 
 
 Backus & Manne (H. Manne, of counsel), for petitioner. 
 
 John M. Wald, for deputy commissioner of excise. 
 
 J. S. Fisher, for respondent. 
 
 CsBORNE, J. The petition herein shows, and it is admitted, 
 tliat at the time of the passage of chapter 112 of the Laws of 
 1S')G. on March 2:5. 1896, known as the "Liquor Tax Law," one 
 Philip Easier conducted the liquor business at No. 108 Union 
 avenue, under a license issued to him by the board of excise of 
 the city of Brooklyn ; that on or about April 10, 1896, said Basler 
 gave up the liquor business, moved away from said premises, and 
 the same remained vacant during the months of April, May and 
 up to June 16, 1896 ; that on ' the last-named day one Adolph 
 Samuely, the above-named respondent, made application to 
 Special Deputy Michell for a liquor tax certificate to carry on 
 the liquor business on said premises, and the same was issued 
 to him on June 23, 1896. The petitioner here seeks to have said 
 certificate revoked and canceled on the ground that there were 
 buildings occupied exclusively as dwellings within two hundred 
 feet of said premises, and that said applicant had not obtained 
 the consent of two-thirds of the owners of such buildings, as pro- 
 vided by section 17, subdivision 8 of the Liquor Tax Law. The 
 language of said subdivision 8 of section 17 as to issuing liquor 
 
l>ucisioxs Kelatixg to 
 
 tax iL'rtilical.es lo permit tlie tiallic in liquors witliiu two liundred 
 I'eet of a building or buildings ixcupicd exclusively for a dwell- 
 ing or dwellings is substantially the same as in the Excise Law of 
 )S1)2. (/hap. 44(1, §4y, Laws 18!i2, as amended by chap. 4«0. 
 Laws 18y:J. 
 
 In the law of 1890 it is provided that consent of two-thirds of 
 "the owners of dwelling-houses within two hundred feet of the 
 phue where the traffic in liquor is to be carried on shall first !>■ 
 obtained, "except that such consent shall not be required in cases 
 where such traffic in liquor is actually lawfully carried on in said 
 premises so described in said statement when this act takes 
 effect." The prohibition in the law of 189- forbade the granting 
 of a license lu sell liipior in any building within two hundred 
 feet of a church or sehoolliouse, "and for which a license does not 
 exisi at the time of the passage of this act." This section of the 
 Excise Law has been construed by the Court of Appeals in People 
 ex rel. Cairns v. Murray. 148 N. V. 171; 4:2 X. E. Repr. .584; and 
 thai court held that "when the licensee, who was then established 
 when the law took effect, abandoned the business, the prohibition 
 becami' absolute as 1o all new ajiplicants." I think that the 
 reason! iij;- by which the Court of Ai)]ieals arrived at its con- 
 clusion in the Cairns case is e(pially ajjplicable in construing sub- 
 division 8 of secfioii 17 of the Li(|U()r Tax Law. The object 
 sought to be attained was to prevent the carrying on of the 
 iii|Uor linsiness within two hundred feet of buildings occupied 
 exclusively as dwellings, withoxit the consent of two-thirds of 
 the owners thereof; and, while the pur]iose of the legislature 
 was to i)rotect parties estaldished in business within the pre- 
 scribed limit at the time the act took effect, such protection was 
 only intended lor those ijarties who were then actually 
 established in business within the prescribed limits. When those 
 parties abandoned such business location, no right or franchise 
 remained in the premises themselves, but the prohibition became 
 ahs(dute as to any new applicants, in the absence of the statutory 
 consent. To hold otherwise would have an effect different from 
 what the legislature plainly intended. 
 
 The prayei- of the petitioner must be granted. 
 
 Ordered accordingly. 
 
Liquor Tax Law 73 
 
 Supreme Court, Erie Special Term, July, 1896. Reported. 18 IVlisc. 343. 
 
 The I'eople ex rel. John Sweeney r. John C. Lammerts^ as 
 County Treasurer. 
 
 1. Excise — Effect of discontinuance of liquor business on premises. 
 
 The exemption from the requirements of the statute as to consents 
 given by the Liquor Tax Law to premises on which the liquor business 
 was actually carried on at the time the act took effect is lost by a 
 subsequent discontinuance of such business and abandonment of the 
 premises, no matter for how short a time. 
 
 2. Same — Neighborhood of church. 
 
 The mere fact that a lot owned by a church society and upon which the 
 foundation walls of a church have been laid stands within 200 feet of 
 the place for which the certificate is sought, does not bring it within the 
 prohibition of subdivision 2 of section 24 of the statute. 
 
 Certiorari to review the determination of John C. Lammerts, 
 as county treasurer of the county of Niagara, in refusing to issue 
 a liquor tax certificate to relator. 
 
 Augustus Thibaudeau, for plaintiff. 
 
 George W. Knox, for defendant. 
 
 TiTUS^ J. The questions here presented arise on the x>etition 
 of the plaintiff for a writ of certiorari, to John C. Lammerts, as 
 county treasurer of Niagara county, and his return thereto. 
 From these papers it appears that the premises known as "601 
 Main street, Niagara Falls," have been for a number of years 
 last past occupied for the purpose of carrying on the business 
 of a retail liquor dealer, and the person so occupying such 
 premises was regularly licensed by the board of excise of the 
 city of Niagara Falls, and that this was the situation on the 23d 
 day of March, 1896, when chapter 112, entitled "An Act in rela- 
 tion to trafflc in liquors," was passed. At that time the premises 
 were owned by Ellen Hawley, and were occupied by Thomas W. 
 Mingay, who held the license and carried on the business. That 
 he continued to carry on that business and occupy the premises 
 until about the 2d of April last, when for some reason he 
 abandoned the premises. That thereafter an arrangement was 
 made between him and the landlord by which he resumed his 
 
74 Decisions Relating to 
 
 business, and continued therein until the 11th day of June 
 following, when he abandoned the business of saloon-keeping, and 
 quit possession of the premises. That thereafter, and on the 12tli 
 day of June, 1896, as appears from the petition, Sweeney, the 
 relator, leased the premises from Ellen Hawley, the owner, for 
 the purpose of carrying on and conducting a saloon and retail 
 wine and liquor business. That the relator has entered into 
 agreements for the fitting up of the place as a saloon and is 
 ready to enter upon said business whenever he can procure a 
 liquor tax certificate of the defendant, required by chapter 112 
 of the Laws of 1896, known as the "Liquor Tax Law." That, on 
 or about the 15th day of June, Mingay, the licensee, applied to 
 the defendant, Lammerts, county treasurer of Niagara county, 
 foi permission to transfer his license to John Sweeney, the re- 
 lator. That the defendant, Lammerts, would not transfer said 
 certificate without the consent of two-thirds of the owners of 
 dwellings within the prescribed limits being executed and filed 
 as required by the statute, and nothing further was done there- 
 under, and the license expired by limitation on June 30th. On 
 the 30th day of June the plaintiff made an application for ri 
 liquor tax certificate, accompanied by the statement required 
 by the act, and gave the required bond, and offered to pay the 
 defendant the amount to which he would be entitled for the 
 balance ^of the year. That the defendant, Lammerts, refused to 
 give the tax certificate, placing his refusal upon the grounds 
 that the place lor which the liquor tax certificate is asked 
 is within two hundred feet of property owned by a church 
 association, and upon which there is a church in process 
 of erection, and that the place for which the liquor tax 
 certificate is nsked is within two hundred feet of the nearest 
 entrance to buildings occupied exclusively for dwellings, and 
 the owners' consents not havinij' been obtained and filed as re 
 quired by law. 
 
 It is undisjiuted that, within two hundred feet of tlie premisses 
 where the business is proposed to be carried on, there are a 
 number of buildings occupied exclusively foi dwellings and the 
 consents of the owners of such buildings have not been obtained. 
 It is also undisputed that on the same street, and opposite, 
 within two hundred feet, is a piece of property belonging to a 
 church society ; that no building has been erected, but a church 
 edifice has been commenced, and the foundation walls have been 
 
Liquor Tax Law 75 
 
 laid, and at the time of this application, and for some time 
 previous, work on the building was and had been suspended. It 
 is now claimed by the plaintiff that, inasmuch as the premises 
 where the business is proposed to be carried on were at the time 
 of the passage of chapter 112 occupied as a place where traffic 
 in liquor was actually lawfully carried on, he is not required, 
 under the exception to subdivision 8 of section 17 of the act, to 
 procure the consent of two-thirds of the owners of such buildings, 
 and that the prohibition contained in subdivision 2 of section 24 
 with reference to buildings occupied exclusively as a church has 
 no application to the facts in this case. Section 11 provides: 
 " Excise taxes upon the business of trafficking in liquors. Excise 
 taxes upon the business of trafficking in liquors shall be of four 
 grades, and assessed as follows:" 
 
 This section then goes on to provide what tax shall be imposed 
 upon the business in the different cities of this State. If the 
 language of the law is to be taken literally, the tax is upon the 
 business of the person, and not a license to the person, as was 
 the case under the law of 1892, which required the applicant to 
 be a person of good moral character; and this language is em- 
 ployed through all of the sections of this statute — "a tax upon 
 the business " — and is nowhere called a license of the business, 
 or to the person. It is provided by subdivision 8 of section 17 
 that: ''When the nearest entrance to the premises described in 
 said statement as those in which traffic in liquor is to be carried 
 on is within two hundred feet of the nearest entrance to a build- 
 ing or buildings occupied exclusively for a dwelling, there shall 
 also be so filed simultaneously with said statement a consent, 
 in writing, that such traffic in liquors be so carried on in said 
 premises during a term therein stated, executed by at least two- 
 thirds of the owners of such buildings within two hundred feet 
 so occupied as dwellings, and acknowledged as are deeds entitled 
 to be recorded, except that such consent shall not be required in 
 cases where such traffic in liquor is actually lawfully carried on 
 in said premises so described in said statement when this act 
 takes effect." 
 
 Section 24 of the act declares: "Place in which traffic in 
 liquor shall not be permitted. Traffic in liquors shall not be 
 permitted * * * (2) Under the provisions of subdivision 1 
 of section 11 of this act, in any building, yard, booth or other 
 place which shall be on the s^me street or avenue, and within 
 
76 Decision.s Kelating to 
 
 two hundred feet of a building occupied exclusively as a church 
 or a schoolhouse. » * * Provided, however, that this pro- 
 hibition shall not apply to a place which is occupied for a hotel, 
 nor to a place in which such trafMc in liquors is actually lawfully 
 carried on when this act takes effect; nor to a place which at 
 such date is occupied or in process of construction by a cor- 
 poration or association which traffics in liquors solely with its 
 members." 
 
 By section 43 of chapter 401 of the Laws of 1S1J2 it was pro- 
 vided that: "Xo person or persons who shall not have been 
 licensed prior to the passaj^e of this act shall hereafter be licensed 
 to sell strong or spirituous liquors, wines, ale and beer in any 
 building not used for hotel purposes, and for which a license doea 
 not exist at tlic time of the passage of this act, which shall be on 
 the same street or a\cnue and within two hundred feet of a build- 
 ing occupied exclusively for a church or a schoolhouse." 
 
 It was held by the Court of Appeals in People ex rel. Cairns v. 
 Murray, 148 N. Y. 171, that this section was a prohibition against 
 any person selling liquors in such a place unless the party apply- 
 ing for a license was the same person who had a license, and had 
 occupied the proscribed premises, at the time of the passage of 
 this act. But the legislature, by the act of 1896, seems to have 
 purposely changed the reading of this provision of the law. The 
 language is significant. It reads: "Place in which trafiic la 
 liquors shall not be permitted. Traffic in liquors shall not be 
 permitted," etc. 
 
 This se.tion is a substitute for section 43 of the act of 1892. 
 which the Court of Appeals, in People ex rel. Cairns r. Murray, 
 supra, had under consideration; and it is manifest that the 
 change made by the legislature was not accidental, but for the . 
 purpose of extending the proviso to the premises which had at 
 the time of the passage of the act been occupied for the sale of 
 liquor. It seems to me it would be doing violence to language to 
 hold that under this section, as it now stands, the only person 
 who occupied the premises under a license at the time the 
 net went into effect could, at that place, carry on the liquor 
 traffic. The provisions of subdivision S of section 17, above 
 quoted, were not contained in the act of 1892; and the language 
 used in llie exception in this subdivision, relating to places 
 within two hundred feet of a building occupied exclusively for 
 a dwelling, is substantially the same as is used in the proviso 
 
Liquor Tax Law 77 
 
 contained in section 2J:, relating to cliuroiies and schoolhouses, 
 and should liave, in mj opinion, the same construction. 
 
 If I am right in the construction I ha\e placed on this section, 
 then it would not be necessary to procure the consent of two- 
 thirds of the owners of buildings occupied exclusively for 
 dwellings, n^r would the inovision prohibiting such traflic within 
 200 feet of a church have any application to this case; for it is 
 undisputed that at the time chapter 112 became a law the 
 premises in question were occupied as a saloon, and traffic in 
 liquors was then actually carried on in that place. Had such 
 traffic been continued down to the time of this application, tin 
 relator would be entitled to the relief which he now seeks. It 
 does not seem to me, however, that the conceded fact that a 
 church society owns property within 200 feet, upon which no 
 building has been erected, is within the prohibition. The language 
 of the statute is "within 200 feet of a building occupied exclusively 
 as a church," and, as there is no building there, it can not be, 
 and is not, occupied as a building for a church, and hence the 
 language of the statute has no application to a case of this kind. 
 It is undisputed that Mingay quit the business of selling liquor 
 at this place on the 11th day of June, and no business has been 
 carried on in the premises since that time. The plaintiff claims 
 that he leased the premises of the owner, and intends to carry 
 on the business, if he can procure a tax certiiicate from the 
 defendant, and that the reason he has not occupied the premises 
 since June 11th is that he could not procure the transfer of the 
 former occupant's license, and that he has, in fact, been in 
 possession of the premises, it should be considered as still a place 
 where liquors are sold. Mingay quit the business June lltli, and 
 made application for a transfer of his license on June 15tli. 
 There is, concededly, a time when no person had any license, 
 except Jlingay, to carry on the liquor business. I can see 
 no reason why a liberal construction should be given to the 
 restrictive provisions of this act. It was probably intended by 
 the legislature to reduce the number of places in which the liquor 
 traffic was carried on, and to increase the revenues by increasing 
 the tax for doing business, and, in a measure, protect dwellings, 
 schools, and churches from surroundings dangerous to good 
 morals, and tending to disturb the peace and quiet of the neighbor- 
 hood, by limiting and prohibiting the places where such traffic 
 may be carried on, and the court always furthers the effort of 
 
78 Decisions Relating to 
 
 the legislature by giving the statute such a construction as will 
 carry out the legislative intent; and I am constrained to hold, 
 therefore, that, as the business of trafficking in liquors was not 
 continued after the 11th day of June, there was an abandonment 
 of the premises for that purpose, and before the liquor business 
 can again be carried on in these premises, the party applying for 
 a tax certificate must comply with the provisions of the act, by 
 procuring the consent of two-thirds of the owners of buildings 
 occupied exclusively for dwellings, as provided by subdivision 8 of 
 section 17. 
 
 A case somewhat analogous has been recently passed upon by 
 the yiipreme Court of Kings county, in the matter of the 
 application for the revocation of the liquor tax certificate issued 
 to Adolph Samuely, ante. It appeared that, at the time of the 
 passage of the act, one Easier conducted a liquor business at 108 
 Union avenue, under a license obtained from the board of excise 
 of the city of Brooklyn; that on April 10, 1896, he gave up the 
 liquor business, and moved away from the premises, and the same 
 remained vacant until June 16, 1896, when Samuely made 
 application and received a liquor tax certificate to carry on the 
 business. An application was then made to the court to cancel 
 tlie license on the ground that Samuely had not gotten the consent 
 of two-thirds of the owners of the buildings, exclusively used as 
 dwellings, situated within 200 feet of such place of business, as 
 required by subdivision 8 of section 17 of the act. It was there 
 contended that inasmiuh as the premises were, at the time of the 
 passage of the act, occupied as a place where liquors were sold, 
 it was not necessary, under the exception contained in subdivision 
 8, to procure the consent of the owners of buildings used as 
 dwellings. The court held that, when such premises were 
 abandoned by the party occupying them at the time of the passage 
 of the act, no right or franchise remained in the premises them- 
 selves. Wliile the learned judge seems to take the view that the 
 premises can not be occupied by any other than the person hold- 
 ing the license at the time the act took effect, the case is 
 authority upon the question that, when the place has once been 
 abandoned, it loses its privileged character which the act gave it, 
 and must be treated as any other place where this business is 
 sought to he carried on, and falls within the prohibition of the 
 statute. 
 
 I am, tlierefore, of the opinion that there was an actual 
 
LiQuoE Tax Law 79 
 
 abandonment of the business and the premises by the licensee, 
 and that after such abandonment, no matter how short the lapse 
 of time, the privilege attaching to such a place, under the statute, 
 has been lost, and the party asking for a liquor tax certificate 
 must conform to the requirements of subdivision 8 before he is 
 entitled to such certificate. It follows, therefore, that this writ 
 must be dismissed, with costs to the defendant. 
 
 Writ dismissed, with costs. 
 
 Supreme Court, Onondaga Special Term, July, 1896. Unreported. 
 
 In the matter of the application of Clarence M. Keene to revoke 
 a liquor tax certificate of John A. Toole. 
 
 McLennan, J. On May 2, 1896, John A. Toole was the lessee 
 of the premises known as Elmwood Park, situate at Elmwood, in 
 the town of Onondaga consisting of about seventeen acres of land. 
 The owner and lessor of the park was Mrs. Ann McGrory, the wife 
 of William McGrory, sometimes called ''McGlory." The main 
 entrance to Elmwood Park is about four hundred feet from Cort- 
 land avenue, and is reached from Cortland avenue by a driveway 
 or lane; and at Cortland avenue there is a sign over such drive- 
 way indicating that it is the entrance to Elmwood Park, and 
 there is also a similar sign at the entrance to the park proper. 
 
 There are places in said park that are situate within two 
 hundred feet of dwelling houses; other places, and the greater 
 portion of the park, are not within such close proximity to houses 
 occupied as -dwellings. 
 
 At the time the application in question was made Elmwood 
 Park was well known both as to its location and character, anl 
 as to its general surroundings. On the day the application was 
 made, May 2, 1896, John A. Toole had the consent of the lessor. 
 Mrs. McGrory to sell liquor in Elmwood Park which at that time 
 was owned by her. He, therefore, at the time was entitled to 
 demand and receive upon filing such consent of his lessor a license 
 to sell liquor at any place in said park, which was at least two 
 hundred feet distant from any residence. Under the law in 
 
gQ Decisions Eblating to 
 
 question, no question could be raised as to his character, and no 
 question could be raised as to whether or not he was a suitable 
 person to engage in such business. He was entitled to demand a 
 license for such purpose, upon properly describing the place where 
 he wished to sell liquor, upon paying the fee required and filing 
 the consent of his lessor, provided such place was not nearer than 
 two hundred feet from the nearest place of residence. 
 
 Upon the day in question. May 2, 189G, he filed his application 
 and stated that the park was located upon Cortland avenue, 
 BlmAvood, town of Onondaga. The certificate, issued at the same 
 time by the county treasurer, described the place as "Elmwood 
 Park, Elmwood, N. Y." It is urged on the part of the petitioner 
 that because Elmwood jiroper does not border upon Cortland 
 avemie, although its main entrance is from such street, that thl.s 
 was a mat<Tial false statement. We think not. No one, as 
 appears from the evidence, was misled or deceived. It was 
 perfectly understood where the liquor was intended to be sold 
 and for what i)Ia((> the certificate was intended to be granted. 
 The certificate issued at the very time the application was 
 presented states that it is for Elmwood, N. Y. It would be idle 
 to say that the descrijition given in the application was materially 
 false within the meaning of the statute. 
 
 It was stated in the application that at the time of the passage 
 of the law known as the Raines Law the trafl3c in liquor had been 
 carried on at the place in question. This statement was 
 undoubtedly untrnc, as appeared by the evidence; but it is quite 
 n^asonable to supjiose from the evidence that Mr. Toole believed 
 it at the time to be true. A government license had been issued 
 for the sale of liquors at this place and the board of excise of the 
 town of Onondaga had assumed, under very questionable methods, 
 to issue a license. It apjicars, uncontradicted, that at the place in 
 question, whiskey bottles and other appliances for carrying on 
 trade were in view during a portion of the last year, but whether 
 or not such traffic in liquor had been carried on is not material, 
 for the reason that if it had not been so carried on Mr. Toole 
 was required only to have filed with the county treasurer the 
 consent of Jlrs. McOrory, which, as appears by the evidence, he 
 then had in his possession. There being afterward a question 
 i-nised as to whether or not liquor had been previously lawfully 
 sold in the park, such consent of :Mrs. IMcGrory was filed with the 
 county treasurer and is produced in court. The court would have 
 
LiQUDE Tax Law 81 
 
 power, and it would have beeu the duty of the court, to have 
 ordered it filed as of that date upon a proper application. 
 
 It is urged that Mr. Toole also should have filed a consent of 
 the residents who are within two hundred feet of any portion of 
 the park. It cannot be assumed that under the liquor tax re- 
 ferred to it is proposed to sell liquor where by the statute it is 
 unlawful to sell it, when, as before stated, it may be lawfully 
 sold in a great portion of the park and at a distance of more than 
 two hundred feet from any residence property; in fact, the evi- 
 dence discloses that it is proposed to sell at a place more than 
 four hundred feet distant from any place of residence. As before 
 suggested, on the 2d day of May, 1896, Mr. Toole was entitled to a 
 license to sell liquor at Elmwood Park, provided he described the 
 place where he wanted to sell with sufficient definition to meet 
 the requirements of the statute, and provided such place was not 
 nearer than two hundred feet from any residence, upon filing 
 the consent of his lessor, Mrs. McGrory. Upon any rule of cou 
 struction of contracts it would be held that he did all that was 
 necessary so far as appears by the evidence in this case. He 
 stated that Elmwood Park was on Cortland avenue. The main 
 entrance to the park is from Cortland avenue; The consent of 
 Mrs. McGrory he had in his possession at the time and afterward 
 filed it with the County Treasurer. As a matter of fact, he 
 proposes to sell liquor at a place more than 200 feet distant from 
 any private residence and in Elmwood Park. The law will not 
 presume that the certificate was issued to authorize .him to sell 
 at a place within 200 feet from private residences rather than at 
 a place where he is authorized under the law to sell. The grounds 
 for asking the revocation of the license are in every sense 
 technical and the court would not be justified, by virtue of its 
 decision, in imposing the severe penalty provided by the statute 
 under such circumstances. 
 
 The application is denied without costs to either party ii>i 
 against the other and judgment may be entered accordingly. 
 6 
 
82 Decisions Relating tu 
 
 Columbia County Court, July, 1896. Unreported. 
 
 The People ex rel. James Habtigan^ v. George H. Macy, Count; 
 Treasurer of the County of Columbia. 
 
 Cbrtioeaei to compel county treasurer to issue liquor tax 
 certificate. 
 
 A. B. Gardenier, for relator. 
 
 Mark Duntz, District- Attorney, for defendant. 
 
 LoNGLEY, Co. J. The relator, a hotel-keeper within the county 
 of Columbia, on the 1st day of May, 1896, applied to the de- 
 fendant, as county treasurer of said county, for a liquor tax 
 certificate. The application was refused by the county treasurer, 
 and the relator obtained a writ of certiorari, under section 28 
 of chapter 112 of the Laws of 1896. 
 
 It is conceded by the return to the writ and by the district- 
 attorney, ai)i)earing for the defendant upon this hearing, that the 
 relator's application in form met all statutory requirements; that 
 the bond which he filed with his application was a proper bond 
 and was approved as to form and sufficiency by the county 
 treasurer; that the relator, at the time he filed his application, 
 paid the proper tax required by law. But the county treasurer 
 in his return states that the reason why he refused to issue a 
 tax certificate to the relator was because the place where the 
 relator proposed to carry on the liquor traffic was less than half 
 a mile from the county poorhouse, and says that he believed such 
 was the fact notwithstanding the applicant's sworn statement to 
 the contrary contained in the application; because, as he says, 
 of his own knowledge of the locality and of information obtained 
 by him after the application was made. 
 
 Tf, in fact, the relator's proposed place of business was less 
 than half a mile from the county poorhouse and situated in a 
 town and outside the limits of an incorporated village or city, 
 he was not under section 21 of said act, legally entitled to receive 
 the certificate for which he applied, and if that fact was properly 
 and legally made to appear to the county treasurer at the proper 
 time, that officer refused the application for a good and valid 
 
Liquor Tax Law 83 
 
 reason and upon a return sufficiently showing the facts, his 
 action should be sustained. 
 
 It is to be noticed that the reasons assigned by the county 
 treasurer lor his refusal to issue a certificate attached by him 
 to the application and certified in his return to this writ, are 
 defective in not stating that the proposed place of business, if 
 within half a mile of the proposed poorhouse, is outside of a city 
 or an incorporated village. 
 
 But the real question with which I am confronted is this : Has 
 the county treasurer any judicial or discretionary power which 
 authorizes him to refuse to grant a certificate in a case where 
 the preliminary statutory requirements have been complied with? 
 
 It seems to nie that the scheme of the statute discloses no 
 purpose on the part of the legislature to clothe county treasurers 
 in this matter with other than ministerial powers. If it was 
 the design of the framers and makers of this law to vest in 
 county treasurers judicial functions, giving them the power to 
 determine on evidence whether or not the applicant for a liquor 
 tax certificate was on the true facts of the case entitled to receive 
 such certificate, the language of the act is singularly inapt and 
 inadequate; inapt — because the statute in terms expressly pro- 
 vides that the county treasurer shall examine the application 
 and bond to see if ther are "correct in form" (§ 18); in- 
 adequate — because no provision is made for taking evidence or 
 hearing proofs, but, on the contrary, on payment of the tax, if 
 the application and bond are found correct in form and the 
 sureties on the bond are approved by the county treasurer, he is 
 "at once to prepare and issue" the tax certificate (§19). Xo 
 provision is made in the statute whereby the allegations of the 
 application may be supported by the applicant by either affidavits 
 or witnesses. He has no notice that the truth of his statements 
 is challenged. He has no hearing after his application is filed, 
 and not only is there no provision in the law by which county 
 treasurers may investigate the truth or falsity of the applicant's 
 answers to the statutory questions contained in the printed form 
 for applications, but no provision is made for the court to receive 
 evidence by affidavits or otherwise upon the return to the writ. 
 These omissions are emphasized in importance by the fact thnt 
 in a case where the county treasurer grants the certificate any 
 citizen may bring his action up for review and ask "for an order 
 revoking and cancelling such certificate, upon the ground that 
 
84 Decisions Relating to 
 
 mateiial sUiteiucuts in the appliciitioa o\' tlie holder of such 
 certiticale were false " ; \\'hen the whole case is ojjen upon the 
 merits for trial before the referee or court upon [nools to be 
 presented. 
 
 If county treasurers may simply assi;;ii a statutory reason 
 for refusing to issue a certificate, without any investigation to 
 ascertain whether such reason in fact exists, and against the 
 sworn statement of the applicant, it must be confessed that the 
 statute is well calculated to make the issuing of a certificate a 
 mere matter of favoritism. 
 
 But a careful examination of the statute in my mind makes 
 clear an altoi;clber different purpose. I think the legislature 
 intended not to create a judicial tribunal out of the office of 
 county treasurer, but in the administration of this law to keep 
 county treasurers as far as possible within their normal and 
 legitimate functions as simple receivers of taxes. 
 
 T think that the necessary facts to entitle an applicant to 
 receive a lax certificate are to be presented to the county 
 treasurer by the sworn siateinent of the applicant contained in Ms 
 answers to the statutory questions in the printed form of appli- 
 cation; that the county treasurer is required, before issuing a 
 certificate, to examine the application and see that the statements 
 necessary to make out a case for a certificate to issue are all 
 there and formally and correctly made, and that when he finds 
 the application correct in form and receives from the applicant a 
 sufficient bond, tojiether with the amount of tax required, he 
 has then no aUernati\e but to obey the explicit command of the 
 statute and "at once'' — without waiting for or receiving any 
 further or subsequent information — issue his certificate. 
 
 If I am rif^ht in the view I take of the statute, the county 
 treasurer in this case should have obtained no information, as 
 be says he did, "subsequent" to receiving the application; he 
 should have acted immediately. Neither was he at liberty to 
 act upon his own knowledge of the locality. He had no discre- 
 tionary or judicial powers in the premises. It was his duty to 
 examine the papers presented and if he found that these were 
 correct in form, and if he approved the bond, then all the pre- 
 liminary statutory requirements had been complied with and 
 he had only the simply ministerial duty to perform of receiving 
 1lie tax and issuing his certificate. 
 
 Mv confidence in the correctness of the views here expressed is 
 
Liquor Tax Law 85: 
 
 very much strengthened by a remark made by Mr. Justice Davy, 
 of the Supreme Court, in deciding at Special Term, the case of 
 People ex rel. Kochester Whist Club r. Hamilton, 17 Misc. Rep. 
 It. In the opinion, at page 12, he says: "It is liardly necessary 
 in this case to discuss the discretionary power that is vested 
 in the county treasurer, under the statute, to grant or refuse 
 a liquor tax certificate. I am inclined to think, however, that if 
 any person applies for such a certificate and brings himself 
 squarely within the terms of the law by complying with all the 
 statutory preliminaries, that the certificate cannot legally be 
 withheld." 
 
 The conclusion I have reached requires that the application to 
 compel the county treasurer to issue a liquor tax certificate to 
 the relator must be granted. 
 
 Supreme Court, Delaware Special Term, August 1896. Unreported. 
 
 People ex rel. William Fuller v. John S. Ellbs. 
 
 Lyons, J. The case of the People ex rel. Thomas v. Sackett, 
 decided at the St. Lawrence Special Term and to be reported in 
 vol. 17, Misc. Reports, is decisive of this application, and an order 
 must, therefore, be granted directing the issuing of the writ of 
 mandamus asked for; but inasmuch as the defendant has con- 
 cededly acted in good faith throughout, and has justly had reason 
 to doubt his legal right to cause notice of a special town meeting 
 to be given, I think he ought not to be charged with costs. An 
 order in accordance with the foregoing memorandum may be 
 prepared. 
 
 Supreme Court, St. Lawrence Special Term, August, 1896. Unreported. 
 
 In the matter of the application of George W. Aldous to revoke 
 the liquor tax certificate of Lucy A. Goodwin. 
 
 Russell, J. The consent of William H. Allen, who as was 
 claimed occupied exclusively for a dwelling premises within two 
 hundred feet of the hotel for which a tax certificate was asked, 
 
80 Dbcisions Relating to 
 
 was necessary under the present law to justify the issuing of a 
 liquor tax certificate. From the evidence taken before the referee, 
 grave suspicions arise that Allen, in making his comparatively 
 large additions and alterations, had in contemplation the project 
 of using the building when repaired for a hotel, which would have 
 destroyed its occupation exclusively as a dwelling house. If his 
 rebuilding and declarations of possible intent had been followed 
 by an overt act of use as a hotel, the evidence would have been 
 sufficient to have justified the finding that the alterations were 
 begun for that purpose and that the dwelling house character of 
 the building was destroyed. But that one overt act is lacking, 
 and mere dcclaratidns of intent, more or less indefinite, will not 
 sutrico to destroy the right of the owner of the certificate, for 
 which she has paid a considerable sum, to claim its validity, 
 especially when Allen himself testifies upon the stand that he 
 did not really intend to use the building as a hotel, but intended 
 to continue i1s character for the purpose for which it has been 
 always used, which was that of a dwelling house. This testimony 
 of his would have a serious effect upon any application which he 
 might make for a certificate claiming that the building is now 
 a hotel. In view of all the facts and circumstances of this case 
 the application to revoke the license of Mrs. Goodwin must be 
 denied. 
 
 Supreme Court, Westchester Special Term, September, 1896. Unreported. 
 
 PEori.E ex rel. ^Martin Anderson v. John Hoag, as County 
 
 Treasurer. 
 
 Keogh, J. The County Treasurer has no power to try an issue 
 of fact. When the application conforms to the provisions of the 
 statute, he has no discretion, and is bound to issue the certificate. 
 In this case, the applicant did not comply with the requirements 
 of the statute. 
 
 The application is denied. 
 
Liquor Tax Law 87 
 
 County Court, Seneca County, October, 1896. Unreported. 
 
 People ex rel. jMartha E. Action v. ^Iaynard T. Gorkhill. 
 
 Proceedings instituted by certiorari to compel tlie County 
 Treasurer of the County of Seneca to issue a certificate under 
 what is termed the Raines Law to Martha E. Action. 
 
 Daniel Moran, attorney for relator. 
 
 Samuel H. Salisbury, attorney for treasurer. 
 
 Richardson, Co. J. On the 28th day of September, 1896, 
 Martha E. Action (the relator), applied to the treasurer of the 
 county of Seneca for a liquor tax certificate; the application was 
 refused and the relator herein obtained this writ of certiorari. 
 
 Upon the return of the writ properly served, the attorneys for 
 the respective parties admit that said relator, Martha E. Action, 
 is the owner of the building and premises in which she seeks to 
 obtain a certificate to sell liquors, and that she occupied the same 
 as a hotel and lawfully conducted the sale of liquors on said 
 premises when said Raines Law took effect, and that said premises 
 are situate within one-half mile of Willard State Hospital. 
 
 The offlce of a writ of certiorari is to correct errors ; therefore. 
 I can not consider said admissions even if they are pertinent to 
 the subject at issue. 
 
 The return of the treasurer to the writ is quite lengthy, but the 
 reasons therein assigned for refusing the certificate are, "I further 
 certify and show to this court that from the statements made to 
 me by the husband of the petitioner herein, the buildings and 
 premises occupied by her in which she applied to carry on the 
 business of trafiicking in liquor was and is situated just across 
 the road from the Willard Insane Hospital and therefore directly 
 within the prohibition contained in subdivision 1 of section 24 of 
 the Liquor Tax Law; that there are two or three other parties 
 upon this same road and situate in the same manner as regards 
 the said hospital, who applied for a certificate to sell liquor under 
 subdivision 1, of section 11 of the Liquor Tax Law. That in view 
 of the importance of this question and of the fact of the uncer- 
 tainty as to my duty under the law, and of the people, wards of 
 the State, that would be affected by the adoption of the rule con- 
 
88 Decisions Relating to 
 
 tended for by the petitioner, I considered it my duty to decide as I 
 have and so leave it until the legal question shall be settled by 
 some decision of the court. I aj)plied to and took counsel of 
 several attornej's upon the question involved in this case and 
 followed the advice given me in regard to the matter and should 
 consider it an omission of my duty as a public oflScer to have 
 followed any other course than the one pursued by me. Hereto 
 annexed and marked "A"' and "B" respectively, are copies of the 
 statement of applicant with reasons for adverse decision attached 
 and bond of applicant." 
 The reason for naid adverse decision reads as follows: 
 
 "Office of M. T. (Jorkhill, Seneca Falls, N. Y. 
 
 Beneca County Treasurer. Sept. 28, 189(). 
 
 I hereby lefuse to grant a liquor tax certificate to the within 
 applicant because she is within the prohibition of subdivision 1 of 
 section 24 of the Liquor Tax Law." 
 
 '■:\r. T. CoRKHiLL, County Treasurer." 
 
 Said treasurer has indorsed his approval on the bond 
 accompanying said application, both as to its form and sufficiency 
 of the sureties. 
 
 The said treasurer in his return to said writ admits in the 
 following words: 
 
 "That the said Martlia E. Action did on the 28th day of 
 September, IS'tO, present to and leave with me a statement or 
 application for a liquor tax certificate under the Liquor Tax Law 
 in the form prescribed by law and did then and there tender me 
 the sum of |.58.3;! and demand that I prepare and issue to her a 
 liquor tax certificate." 
 
 Subdivision 1 of section 24 of the Liquor Tax Law, under whicli 
 the said treasurer refuses to grant said certificate, reads as 
 follows : 
 
 " Traffic in liquor shall not be permitted in any building owned 
 by the public, or upon any premises established as a penal 
 institution, protectory, industrial school, asylum. State hospital, 
 or poor-house, and if such premises be situated in a town and ' 
 outside the limits of an incorporated village or city, not within 
 one-half mile of the premises so occupied, provided there be such 
 distance of one-half mile between such premises and the nearest 
 boundary line of such village or city." 
 
LiQUOK Tax J.aw 
 
 From the admissions of the county treasurer as made by him i)i 
 his return, I find that the said ^lartha E. Action, on the 28th 
 day of September, 1896, filed with said county treasurer of Seneca 
 county, N. Y., her verified application complying with all the 
 provisions of section 17 of said Liquor Tax Law, and which 
 application was correct in form ; I also find that said relator duly 
 filed m the office of said county treasurer the bond required by 
 section 18 of said law, and that said bond was duly apjn'oved by 
 said treasvirer, both as to its form and the sufficiency of its 
 sureties. I further find that said applicant tendered full pay for 
 such certificate. 
 
 Section 19 of said Liquor Tax Law provides that when said 
 sections 17 and IS have been complied with the county treasurer 
 shall at once prepare and issue to the person making such 
 application and filing such bond and paying such tax, a liquor 
 tax certificate in the form provided for in said act. This the said 
 county treasurer refused to do because he had been advised nc>t 
 to do it, &c. 
 
 From the foregoing I hold that said treasurer had no discretion- 
 ary power in the granting or refusal of such certificate; and I 
 find from his return that said applicant complied with the 
 provisions of said Liquor Tax Law and was entitled to a 
 certificate, and the same was denied without good and valid 
 reasons therefor ; therefore, I do order the treasurer of the county 
 of Seneca to grant such application and to issue a liquor tax 
 certificate to such applicant upon the payment of the tax therefor. 
 
 Supreme Court, Onondaga Special Term, October, 1896. Reported. 
 
 18 Misc. 292. 
 
 The Pkoplk ex rel. Thomas Ryax and Another v. Hubbard 
 Manzee, County Treasurer of Onondaga County. 
 
 Liquor Tax Law — Transfer of certificate. 
 
 A county treasurer is not justified in refusing to allow a person who 
 holds a liquor tax certificate to transfer it to another, upon the ground 
 that a verbal complaint has been made against the holder of the certificate 
 that he was carrying on the liquor business in a room which connected 
 with his grocery, such an act being a violation of section 22 of the Liquor 
 Tax Law. 
 
90 Decjskins Kelating to 
 
 ("liiMiuRAKi til review the determination of the treasurer of 
 l-'iioudaga county in iL-lusing to transiei- a liquor tax certificate. 
 Tlie opinion j^tates thu facts. 
 
 (ieoige W. O'Brien, for relators. 
 
 Mead & ytianahan, foi- respondent. 
 
 Speing^ J. On July 1st last, a liquor tax certificate was issued 
 to Patrick O'Day, in pursuance of subdivision 1, section 11 of 
 the Liquor Tax Law, permitting him to trafiic in liquors at 1032 
 West Fayette street, in the city of Syracuse. 
 
 Ou the 7th day of October, the said O'Day and the other n;- 
 lator, Evan, fornially applied to the county treasurer of said 
 county to have said tax certificate transferred to said Eyan, 
 and accompanied said application with the bond required by 
 law, and offered to ]»ay the $10 allowed as the fees therefor 
 and requested the treasurer to give his assent to such transfer in 
 writing on the face of such certificate as the statute provides. 
 
 The treasurer declined to pive such consent, alleging as his 
 reason for such refusal that the applicant O'Day had "dis- 
 qualified himself of the right to sell, assign or transfer said 
 liquor tax certilicate because of a violation of the provisions of 
 thf Liquor Tax Law."" The precise excuse of the treasurer was 
 that a complaint liad been made aaainst the said relator O'Day 
 that he was larrying on the liquor business in a room or place 
 connected and communicating with a grocery conducted by him, 
 and which is in violation of section 22 of the Liquor Tax Law. 
 No arrest or indictment of O'Day has ever been made or found 
 and the accusation alone is the basis for the action of the 
 treasurer in refusing to consent to the desired transfer. 
 
 Section 27 of the Liquor Tax Law (chapter 112 of the Laws 
 of 1896) permits the transfer of these certificates. They are of 
 jiroperty value and can be surrendered or assigned. In the 
 section providing for the transfer the manner of so doing is set 
 forth and there is no restriction imposed whatever. 
 
 That the treasurer, however, has a right to withhold his con- 
 sent to the transfer is apjiarent from the succeeding section, for 
 (hat provides the method of reviewing the action of the treasurer 
 in case he declines to issue the certificate originally or to assent 
 to the transfer. There is no jirovision, however, determining what 
 
LiQUOE Tax Law 91 
 
 is an adequate reason or justification for the treasurer to decline 
 t<. consent to tlie transfer. 
 
 Sections 22 to 24 inclusive of tlie act recite the inhibitions of 
 the. law, providing among other things that the traffic in liquors 
 shall not be carried on in a place communicating with a placi' 
 where the business of selling groceries is conducted. In case of 
 a violation of these provisions either by material misrepresen- 
 tations made in the application or l>y conduct subsequent 
 thereto, any citizen of tlie State may by a proceeding in court 
 test the right of the holder of the certificate to retain the same, 
 and of course the holder has an opportunity to be heard and a 
 trial is had upon the specific charges made, and if they are sus- 
 tained the certificate is revoked and canceled by order of the 
 court. By section 34, violations of the act are made misde- 
 jueauors and the fines and penalties imposed are s]i<'<ifically 
 enumerated. In all the violations of the act and in the certiorari 
 ])rocoedings to test the right of the holder of the certificate to 
 continue the business, a conviction or adverse adjudication is 
 an essential prerequisite to the taking of any action prejudicial 
 t(i Ihe person accused or that may divest him of his property 
 rights in tlie certificate. 
 
 Section 2.5 of the act provides for the surrender and cancel- 
 lation, of the certificate. In that case the holder who has volun- 
 tarily ceased to traffic in liquors "before arrest or indictment for 
 a violation of this act " may surrender such tax certificate for can- 
 cellation, and the officer issuing the same shall refund the pro 
 rata amount of the tax paid for the unexpired term. However 
 serious charges may have been made against the person desiring 
 to surrender the certificate, however wilfully false may have been 
 the essential statements in his application, they cannot be used 
 to prevent the surrender of the certificate. If he has escaped the 
 criminal process the treasurer must give him the full benefit 
 accorded to an innocent man. The permission is dependent 
 solely upon the voluntary cessation of the liquor traffic "before 
 arrest or indictment," and in all other cases the actual de- 
 termination of a court must precede any action detrimental to 
 the right of the holder in his certificate. 
 
 In the case under consideration the reason assigned for de- 
 clining to consent comes far short of an arrest or indictment. 
 It is a mere unsupported accusation and, so far as the record 
 shows, not even in writing. An arrest or indictment implies 
 
II- J)ecisio.\.s Eelatixg to 
 
 the interposition of a court. There is some gravity, some foun- 
 dation for the charge then, and the process of the court has been 
 set in motion so the accused can soon meet the specific 
 accusation. 
 
 The presumption is the accused is innocent ; yet if the treasurer 
 can refuse his consent whenever the holder of a certificate is 
 verbally charged with violating any of the provisions of the 
 law, the eftect is to determine him guilty. Property rights should 
 not be made dependent on so uncertain a basis. The rule con- 
 tended for by respondent is too drastic and yet too intangible. 
 Vindication of the laAv or its full enforcement does not require 
 a construction that gives such arbitrary power to any one. To 
 make efliective the transfer the intended transferee makes a 
 verified application like that of the original holder. He accom- 
 panies this with a bond identical with that given by his 
 predecessor in title. If he makes any material misrepresentation 
 or violates any of the provisions of the law he is amenable to 
 punishment. Nor does the assent to the transfer exonerate the 
 original holder either from punishment for material misstate- 
 ments or violations occurring during his carrying on of the 
 traffic. The transaction is not of sufficient significance to call for 
 a strained construction of the law to obstruct or make difficult 
 these transfers. 
 
 I take it these questions are to be determined as those of law 
 ba.sed upon the record, the papers before the treasurer at the time 
 he refused to consent to the transfer. By that standard the 
 single point in controversy is, does the making of a charge of a 
 complaint To the treasurer against the holder of a certificate 
 justify that official in declining to consent to the transfer asked 
 for? I am clear it is not a sufficient reason for his refusal. Any 
 person from sinister purpose or otherwise could impede and 
 prevent these transfers if that is the interpretation to be given 
 to this statute. 
 
 An order will be granted requiring the respondent to consent 
 to the transfer with |oO costs to the relators, to be paid by the 
 respondent out of the undivided assets received by him in pursu- 
 ance of the act in controversy. 
 
 Ordered accordinglv. 
 
Liquor Tax Law 93 
 
 First Appellate Department, October, 1896. Reported. 9 App. DIv. 436. 
 
 The PEori-E or the State of New York, Respondent, v. Henry 
 W. KoEXiG, Appellant. 
 
 Selling beer to minors — Trial in Special Sessions — Penal Code, §290, not 
 repealed by chapter 112 of 1896. 
 
 The provisions of the Liquor Tax Law (Chap. 112 of 1896), maljing the 
 sale of liquor to a minor under sixteen years of age a misdemeanor, and 
 providing that the offense "shall be prosecuted by indictment * * * and 
 by trial in a court of record having jurisdiction for the trial of crimes of 
 the grade of a felony," are not exclusive and do not repeal by implication 
 that provision of the Penal Code which makes it a misdemeanor to sell 
 liquors to a child actually or apparently under the age of sixteen years — 
 an offense cognizable in the Court of Special Sessions of the city and 
 county of New York, except in a case where the accused demands a 
 trial by jury or where the case is subsequently removed into the Court 
 of General Sessions. 
 
 Repeals by implication are not favored in the law, and a statute is 
 not to be deemed repealed by implication by a subsequent statute upon 
 the same subject, unless the two are manifestly inconsistent with and 
 repugnant to each other, or unless a clear intention is disclosed on the 
 face of the later statute to repeal the former one. 
 
 Appeal by the defendant, Henry AV. Koenig, from a judgment of 
 the Court of Special Sessions of the city and county of New York, 
 rendered on the 18th day of June, 1896, convicting the defendant 
 of a misdemeanor. 
 
 W. M. Mullen, for the appellant. 
 
 John IJ. Tjindsay, for the respondent. 
 
 Van Brunt, P. J. : 
 
 On the 5th day of June, 1S96, the appellant was arrested 
 within the city of New York and brought before a city 
 magistrate, charged with violating section 290 of the Penal Code, 
 in that he, the defendant, had sold beer to a minor under the 
 age of sixteen years. When the defendant was arraigned for 
 trial in the Court of Special Sessions he moved for a dismissal 
 of the complaint on the ground that, under chapter 112 of the 
 Laws of 1896, known as the Liquor Tax Law, the court had no 
 jurisdiction to try the case for the following reason: That the 
 only way in which the defendant could be prosecuted was by wav 
 of indictment and trial in a court of record having jurisdiction 
 
Ui J»I0C1.SI<J-\S illOI.A'J'lNi; TO 
 
 lor the I rial of crimes of tlie grade of a felony. This motioD 
 \\;i.s denied. At the close of the People's case the defendant 
 reiun^ed his mnlidu, which was again denied; to both of which 
 rulings the defendant duly excepted. 
 
 The provision of the Penal Code whicl] the appellant was alleged 
 to have violated was subdivision 3 of section 290, which provider 
 that a person who sells or gives away, or causes or permits or 
 procures to be sold or given away to any child actually or 
 apparently under the age of sixteen years, any beer, ale, wine or 
 any strong or spirituous liquors, is guilty of a misdemeanor. This 
 irovision was enacted in 1889 (chap. 170), and was concededly in 
 orce up to the time of the going into efifect of the Liquor Tax Law 
 jbove mentioned; and there is no claim made but that until the 
 passage of this latter law, offenses against the provision quoted 
 .\('re c(>i;nizable in the Court of Special Sessions of the city and 
 county (if New York unless the defendant demanded a trial b^ 
 jury, or thei'eafter the case was removed into the Court of General 
 Sessions. 
 
 On the 2;ld of March, 1896, chapter 112 of the Laws of 1896 
 known as the Liquor Tax Law, was enacted; and by section 30 
 thereof it was provided, among other things, that "no corporation 
 association, copartnership or person, whether taxed under this 
 act or not, shall sell or give away any liquors to (1) any minor 
 under the age of eighteen years." 
 
 Section 34 declares, among other things, that any person who 
 shall violate the provisions of this act by trafiBcking in liquor 
 contrary to its provisions shall be guilty of a misdemeanor, and 
 upon conviction thereof shall be punished by fine, etc. 
 
 Section 35 provides that, "except as otherwise provided by thm 
 act, all proceedings instituted for the punishment of any violation 
 of the provisions of the act, the penalties for which are prescribed 
 in section 34, shall be prosecuted by indictment ♦ * * and by 
 trial in a court of record having jurisdiction for the trial of crimes 
 of the grade of a felony." 
 
 It is urged upon the part of the appellant that section 290 of the 
 Penal Code is impliedly repealed by chapter 112 of the Laws of 
 1896, and there undoubtedly would be considerable force in the 
 contention had not the Liquor Tax Law itself provided as to what 
 laws were repealed by it. By section 44, it repeals the provisions 
 of "any special or local law, grant or charter in conflict with this 
 art." The provision of the Penal Code in question was not a 
 
LiQuoE Tax Law 95 
 
 special or local law, and, therefore, was not repealed by this 
 section of the act. 
 
 Annexed to the act is a schedule of general laws, and the act 
 provides that of the laws enumerated in this schedule that portion 
 specified in 1he last column is repealed. But section 290 of the 
 Penal Code is not there mentioned. This clearly indicates that it 
 was not the intention of the Legislature to repeal any general 
 laws except those enumerated in the last column of this schedule, 
 This view is further strengthened by section 728 of the Penal Code, 
 which provides that "no provision of this code, or any part 
 thereof, shall be deemed repealed, altered or amended by the 
 passage of any subsequent statute inconsistent therewith, unless 
 such statute shall explicitly refer thereto and directly repeal, 
 alter or amend this code accordingly." 
 
 The rule is well settled that repeals by implication are not 
 favored, and that a statute is not to be deemed repealed by 
 implication by a subsequent statute upon the same subject, unless 
 the two are manifestly inconsistent with and repugnant to each 
 other, or unless a clear intention is disclosed on the face of th(^ 
 later statute to repeal the former one. {Heckmann v. Plnhneij. 
 81 N. Y. 215 ; People v. Jaehne, 103 id. 182 ; McEenna v. Edmund- 
 stone, 91 id. 231.) 
 
 Applying these rules to the case at bar, it is evident that there 
 was no repeal by implication of the provisions of the Penal Code. 
 It is true that the appellant might have been proceeded against 
 under the provisions of the Liquor Tax Law. But those provisions 
 were not exclusive ; the two acts could stand together, and it was 
 the evident intention of the Legislature not to repeal any general 
 laws except those referred to in the last column of the schedule 
 above mentioned. It might be further suggested that the actjj 
 in question have not the same object. The provisions of the Penal 
 Code upon this subject have in view the protection of children, 
 while those of the Liquor Tax Law relate entirely to the regula- 
 tion of the liquor trafBc. 
 
 It seems to be apparent, therefore, that the statutes are not nt 
 all in pari materia, and for this reason there could be no repeal 
 by implication. 
 
 We are of opinion that the conviction should be affirmed. 
 
 Barrett, Rumsby, Williams and Patterson, JJ., concurred. 
 Conviction affirmed. 
 
!)() Decisioxs Reflating to 
 
 Supreme Court, Niagara Special Term, November, 1896. Reported. 
 
 18 IVlisc. 498. 
 
 ilatter of the Application of Cathakink .Jghx.son for the Ee- 
 voliing of a Cei'taiii Li([Uov Tax Cei-titieate heretofore Issued 
 to Louis F. .Mayle. 
 
 1. Excise — Surrender of certificate. 
 
 Where the question of the validity of a certificate is brought into court, 
 the county treasurer has no authority to accept its surrender and refund 
 the pro rata amount of tax for the unexpired period. 
 
 2. Same — Consents of neighboring owners — Revocation of certificate. 
 
 Where an applicant for a liquor tax certificate omits, by mistake, to 
 obtain the consents of the necessary number of owners of adjoining 
 property, pursuant to subdivision 8 of section 17, chapter 112, Laws of 
 1896, at the time of the filing of his application for a certificate, yet, 
 where he subsequently obtains and files consents sufficient to make the 
 necessary number, the court may decline to revoke the certificate. 
 
 3. Same — Costs of proceeding. 
 
 Where the filing of the consents is not completed until after the 
 application is made to revoke the certificate for want of necessary num- 
 ber of such consents, the costs of the proceeding are chargeable to the 
 licensee. 
 
 Afplicatiox for an order revoking and canceling a liquor tax 
 <ertificate. 
 
 .Varon Fybush, for petitioner. 
 
 Franklin J. Mackenna and W. Caryl Ely, for licensee Louis F. 
 -Mayle and Canavan & Clary, transferees. 
 
 Laughlin, J. It appears by the evidence taken before the 
 referee appointed by the court in this proceeding that, on July 
 I, 1896, Louis F. ;\Iayle presented to the county treasurer of 
 Niagara county an application in the form and manner required 
 by section 17 of the Excise Law, for a liquor tax certificate, to 
 carry on business at the premises known as the State Park Hotel, 
 in the city of Niagara Falls. He filed simultaneously with this 
 statement certain consents of owners of occupied property, under 
 subdivision S of that section. The liquor tax certificate was 
 thereupon issued to him. It is evident that he acted la good 
 
LiQuoE Tax Law 97 
 
 faith and believed that he had obtained the necessary consents of 
 two-thirds of the owners of occupied property within two 
 hundred feet of the premises in question, but, as a matter of 
 fact, he had procured only one-half of such consents. After the 
 petitioner applied to the court for an order canceling the cer- 
 tificate, and served notice upon Mayle, the latter obtained and 
 filed with the county treasurer the consent of another property 
 owner, which would make the necessary two-thirds consents, pro 
 vided the consent thus obtained after the certificate was issued 
 and after proceedings had been commenced in court can be 
 counted for the benefit of the holder of the certificate. It 
 appears that those who gave their consents originally still favor 
 the application and have in no manner attempted to withdraw 
 or revoke their consents. If the liquor tax certificate be now 
 cancelled, Mayle will, by the express terms of section 28 of the 
 Liquor Law, be obliged to forfeit the moneys heretofore paid foi- 
 his license to carry on the business until next July, notwith- 
 standing the fact that with the necessary consents he can at 
 once obtain a new liquor tax certificate. He woTild not be 
 aided, as contended by his counsel upon the argument, by the 
 provisions of section 25, authorizing the holder of such a ccr 
 tificate to surrender the same up and obtain a rebate on account 
 of the unexpired term of the certificate. The validity of this 
 liquor tax certificate being now before the court, the countv 
 treasurer has no authority to accept its surrender and refund the 
 pro rata amount of the tax paid for the unexpired period. Under 
 these circumstances, equity forbids the cancellation of the liquor 
 tax certificate unless the law leaves no alternative. The statute 
 authorizing the application provides that at any time after a 
 liquor tax certificate has been issued a petition may be presented 
 to a justice or Special Term of the Supreme Court " for an order 
 revoking and canceling such certificate, upon the ground that 
 material statements in the aiiyilicatioii of the holder of such 
 certificate were false, or that he is not entitled to hold such 
 certifi(:ate." 
 
 The statute provides with respect to the power and duty of the 
 court on such an application, and after the evidence has been 
 taken before the court or a referee, as follows : 
 
 "If the justice or court is satisfied that material statements in 
 the application of the holder of such certificate were false or that 
 the holder of such certificate is not entitled to hold such cer- 
 7 
 
98 Decisions Relating to 
 
 tificate, an order shall be grauted revoking and canceling such 
 certificate. The decision of such justice or court shall be final 
 and conclusivu and no appeal therefrom shall be had or taken, 
 * * * Costs upon such proceedings may be awarded in favor 
 of and against any party thereto, in sums as in the discretion 
 of the justice or court before which the petition is heard may 
 seem proper." 
 
 The evidence fails to show that any material fact stated in the 
 application Avas untrue. The law does not require the applicant 
 to state in his application that he has obtained the necessary 
 consents of property owners; but merely requires that such con- 
 sents shall be filed simultaneously with the statement or appli- 
 cation. It has been seen that the only other ground on which 
 the certificate can be canceled is "that the holder of such cer- 
 tificate is not entitled to hold" the same. It is evident that the 
 legisl:iture intended that the certificate should be canceled if 
 any material statements in the application were false. If all 
 such materi.il statement.s were true, however, and the applicant, 
 through mistake or excusable neglect, has failed to comply with 
 tlie provision recjuiriug tlie filing simultaneously with his appli- 
 cation of the consents of property owners, but has subsequently 
 obtained and filed such consents, the court is authorized to 
 exercise its equitable discretion, and decline to cancel the liquor 
 tax certificate. 
 
 At the time the petitioner applied to the court the licensee had 
 no right to hold the certificate, and the court subsequently saw 
 fit to order a reference to determine whether the respondent had 
 a right to hold the certificate at the time it was issued, or after- 
 ward perfected such right. 
 
 The expense of this reference has been borne by the petitioner, 
 and it was rendered necessary through the neglect of the licensee ; 
 equity, therefore, requires that he should pay the costs. The 
 petitioner is awarded the sum of $125 for her costs and disburse 
 nients herein, against the respondent Louis F. Mayle, and an 
 order may be entered accordingly, and dismissing the petition. 
 
 Ordered accordingly. 
 
LiQUOE Tax Law 99 
 
 Supreme Court, New York Special Term. Reported N.. Y. L. J., 
 
 November 30, 1896. 
 
 The People ex rel. William S. Gray v. George Hilliard as 
 Special Deputy Commissioner of Excise. 
 
 Beekmax^ J. The relator is the duly appointed receiver of a 
 judgment debtor who is the holder of a liquor tax certificate 
 having still some time to run. The receiver is not in possession; 
 of the certificate, and as the judgment debtor cannot be found he 
 is not able to obtain such possession. Proof of these facts has 
 been submitted to the commissioner of excise, coupled by a formal 
 statement by the receiver that he surrendered the certificate and 
 demanded the surrender value, under section 25 of chapter 112 
 of the Laws of 1896, known as Liquor Tax Law. The commi:' 
 sioner has refused to recognize the validity of this demand, on 
 the ground that, under the law, the party making the demand 
 must physically surrender the certificate in order to entitle him 
 to receive the rebate. The question is brought up for consider- 
 ation upon a demurrer to the return made by the commissioner 
 to a writ of alternative mandamus which has been sued out b,v 
 the relator to compel such payment. A liquor tax certificate 
 under the liquor law has a double significance. It not only 
 evidences the fact of the payment of the tax, but it also operates 
 to make a traffic in liquors lawful for the person to whom it is 
 issued. Furthermore, the physical possession of the certificate 
 is also essential to authorize such traffic and its continuance 
 during the term for which the tax has been paid. Section 21 
 of the law provides that before commencing or doing any business 
 for the time for which a liquor tax is paid and a certificate is 
 given, such certificate shall be posted up and at all times dis- 
 played in a conspicuous place where such traffic is carried on. 
 Section 27 permits the sale and assignment of such certificate 
 and authorizes the purchaser to continue the traffic thereunder on 
 certain conditions — among others, the presentation of such cer- 
 tificate to the officer who issued the same, or to his successor in 
 office, "who shall write or stamp across the face of the certificate, 
 over his signature, the words 'consent is hereby given for the 
 transfer of this liquor tax certificate to' (and here insert the 
 name of the corporation, association, copartnership or person to 
 
100 Decisions Relaxing to 
 
 \\hom the same is traiislei-i-edj." Section '2^) provides that the 
 holder of sueli certificate may surrender it to the officer who 
 issued the same, "wlio shall thereupon cancel the same and re- 
 fund the pro rata amount of the tax paid for the unexpired term 
 of such tax certificate." The same section also provides that a 
 receiver of the property of a person holding such certificate may 
 in like manner, surrender the same, or may continue to carry 
 on the business, in which latter event the certificate shall have 
 written or stamped across its face, over the signature of th-i 
 officer ^^ho issued the same, a permission to continue the traffic 
 for the unexpired term. Sufficient has been shown to indicate 
 the importance attached to the physical possession of the cer- 
 tificate, and the dependence of the rights of the person to whom 
 it has been issued, or to whom it has been transferred, upon such 
 possession. 1 have, therefore, come to the conclusion that when 
 the statute provides for the surrender and cancellation of the 
 certificate, it means nut only a surrender of the rights to traffic 
 in liquor under the law, biit also, wliere it is in existence an 
 actual surrender of the paper itself and its physical cancellation. 
 The importance of this to a proper administration of the law by 
 those appointed to supervise its operation is apparent. Taking 
 the present case as an illustration, it may be that before the 
 receiver was appointed the judgment debtor has assigned the cer- 
 tificate, and transferred its possession to such assignee. Should 
 such purchaser present it to the commissioner, with the written 
 application and bond required by the law, the latter would be 
 compelled to give his consent to such transfer and thereupon the 
 assignee would be entitled to traffic under the certificate in like 
 manner as if it had been originally issued to him. In that event, 
 if the refund asked for in his application should have been made, 
 the situation would be either one where the commissioner would 
 become personally responsible for the amoimt of the tax so re- 
 funded, or the business would be carried on under the certificate 
 for the balance of the term without the payment of the tax, 
 which conditions the lawfulness of the traffic. The statute should 
 not receive a construction which would result in such incon- 
 sistency and confusion. I am, therefore, of the opinion that 
 upon the facts before me the relief asked for should not 1be 
 granted. In stating this conclusion, I also wish it to be under- 
 stood that I do not decide that appropriate relief may not be 
 obtained where the certificate has been destroyed through some 
 
LiQUOK Tax Law 101 
 
 casualty, and that fact plainly appears. That wcmld present a 
 different case, to be determined upon a different principle. All 
 that 1 undertake to hold here is that where it appears tliat the 
 certificate is in existence, the commissioner of excise cannot be 
 called upon to accept a surrender of the same without its physical 
 production for cancellation. For the reasons which I have 
 stated, it follows that the demurrer must be overruled and judg- 
 ment awarded to the respondent, dismissing the writ. 
 
 County Court, Broome County, December, 1896. Unreported. 
 
 People v. Samuel J. Weir. 
 
 Appeal from a judgment of the Eecorder's (^'ourt of the City 
 of Binghamton convicting the defendant of having violated 
 section 1 of article 1 of title 7 of the Ordinances of the City of 
 Binghamton in keeping his saloon open for the transaction ot 
 business, between the hours of twelve o'clock midnight and one 
 o'clock in the morning. 
 
 Charles F. O'Brien and R. B. Richards, for appellant. 
 
 James T. Rogers, for respondent. 
 
 Arms, Co. J. : Section 1 of article 1 of title 7 of the Ordinances 
 of the City of Binghamton provides that "every saloon, res- 
 taurant, bar or other place, where any distilled or fermented 
 liquor is kept for sale (except drug stores) and every billiard 
 room, bowling alley, or place where games of chance or skill are 
 carried on or permitted, as a business, or in connection with any 
 business, shall be closed on Sundays and every night on or before 
 twelve o'clock and shall remain closed until five o'clock the fol- 
 lowing morning. 
 
 "Any person owning or having charge of any place above men- 
 tioned, who shall violate any provisions of this section shall bs 
 subject to a fine not to exceed |100." 
 
 This ordinance was in force when chapter 112 of the Laws ot 
 1896, known as the Liquor Tax Law, took effect. 
 
 There is no dispute over the facts, and the only question pre 
 
102 Decisions Relating to 
 
 sented here is whether the ordinance above quoted is still in 
 force notwithstanding the passage of chapter 112 of the Laws 
 of 1896. By section 44 of that act it is provided that "the pro 
 visions of any special or local law, grant or charter in conflict 
 with this act are hereby repealed and annulled" and it is con 
 tended by the appellant that this provision repealed the pro 
 visions of the local ordinance, while on the other hand it is con 
 tended by the respondent that the legislature and the ordinance 
 in question do not conflict; that the ordinance does not assume 
 to regulate the traffic in liquors but is a part of the police power 
 confi-rred upon the local authority to regulate the times, and the 
 places, where such traffic shall be conducted. 
 
 It was said in People v. ]\[iuray, 4 App. Div. 193, that the result 
 of the new liquor law was "the total extinction of an entire excise 
 system and the creation of another and diff'erent one, including 
 tlie whole State and embracing in a single scheme everything 
 necessaiy to the establishment and operation of a complete sys- 
 tem, even to the very details required by difiCerent conditions in 
 difl:erent localities." This case was affirmed in the Court ol 
 Appeals, it being the case in which the constitutionality of the 
 law was assailed. 
 
 It is a well-settled rule that a later statute covering the same 
 subject-matter and embracing new provisions operates to repeal 
 the prior act, although the two acts are not in express terms 
 repugnant. 
 
 Another well-settled rule is, that where a later statute not pur 
 porting to amend a former one upon the same subject, covers 
 the whole subject and was plainly intended to furnish the whole 
 law thereon, the former statute will be held to be repealed bj 
 necessary implication. 
 
 Chapter 112 of the Laws of 1896, is named "Liquor Tax Law,' 
 but it was said in People ex rel. Einsfeld v. Murray, 149 N. Y. 39; 
 "It is radically different in some respects from the excise laws 
 which it superseded. But the changes are in the administration 
 of the excise system and not in its essential character. The most 
 notable changes are (1) State supervision in place of supervision 
 through Boards of Excise, and (2) the opening of traffic to all 
 citizens (with certain exceptions) who shall pay the license tax 
 and give the bond required." 
 
 A careful examination of the Liquor Tax Laws leads one 
 almost irresistibly to the conclusion that it was intended as a 
 
Liquor Tax Law 103 
 
 general and uniform law, and as the only law, to govern and 
 control the business of trafficking in liquors on the points to 
 which its provisions relate and for which they provide. To hold 
 otherwise might lead to serious complications and difficulties. 
 
 Under its provisions a person holding a tax certificate ha'j 
 Ihc unquestionable right to sell up to one o'clock in the morning 
 Urtil that time, he is not required to expose to vievi^ from tht 
 street the inside of his place of business. Now if the ordinance 
 in question is still in force, while he would be obliged to close 
 and lock his outside door at twelve o'clock, he might have anj 
 number of people inside between the hours of twelve and one to 
 whom he could sell whatever they wanted for the period of one 
 hour, during which time their acts and conduct would not ■•". 
 subject to the observation of or interference by any officers ot 
 the law, as neither a special agent or a police officer would have 
 any authority to break in and enter the place. It seenus quite 
 apparent that the two provisions are both inconsistent and re- 
 pugnant. The license tax imposed by this act is uniform and 
 equal in its several grades in all the counties of the State and, 
 if it were to be subject to either abridgment or partial nul- 
 lification by local authorities it would no longer be a uniform 
 scheme under the direction of the State, but might be made 
 subordinate to the varied and different ideas of the different 
 towns, villages and cities throughout the State. Such legislation 
 would be absurd in theory and might easily lead to inequality and 
 injustice. Moreover, I am of the opinion that the ordinance in 
 question was expressly repealed by section 44 of the Liquor Tax- 
 Law. 
 
 From these views, it follows that the judgment of conviction 
 should be reversed and the defendant discharged. 
 
 Supreme Court, Washington Special Term, December, 1896. Unreported. 
 
 In the Matter of the Application of Joseph 0. Russell to revoke 
 the Liquor Tax Certificate of Michael Noonan. 
 
 Stover, J. This is an application under section 28 of the 
 Liquor Tax Law, for the revocation of a certificate. The only 
 issue raised by the proof is as to the allegation that the consent 
 
104 Decisions Jii:i-ATi.\f: 'in 
 
 of two-thirds of the owners of buildings, occupied exclusively as 
 dwellings, was not obtained by the defendant at the time of 
 making his application. It appears that there were two buildings 
 within 200 feet of the property; Mrs. Frasier's, whose consent 
 was obtained, and tlie petitioner's. The petitioner is a practicing 
 physician, and has an office in the building occupied by him as a 
 residence. He receives his patients there and is engaged in the 
 general practice of medicine. 
 
 The simple question is whether this is a building occupied 
 exclusively as a residence. While it may be said that the object 
 of the restriction was to maintain the privacy of the home, and 
 to prevent rendering residential localities objectionable, by the 
 Ijlacing of saloons near them, yet it was within the power of the 
 Legislature to limit the operation of the rule, and it has seen fit 
 to do so, by providing that tlie building should be exclusively used 
 for residential purposes. The office contains the medical books, 
 some medicine.'i, bottles, and the usual paraphernalia of a 
 physician's office. The petitioner has a sign upon the building 
 and testifies that he is in active practice. 
 
 No test ha.s been laid down as to what shall be considered a 
 residence within the meaning of the statute under consideration, 
 but I am inclined to think upon the principle, that where a por- 
 tion of a building is used for the purposes of a general business, 
 or the general practice of a profession, to which the public i^ 
 invited, it .an not l)e said to be used exclusively for residential 
 l)urp(.ses. As for the purpose of this case, the using of a portion 
 of a building as an office, for the general practice of a profession, 
 would be quite as much an interference with the use of the build- 
 ing for residential purposes, as a setting apart of the same space 
 for the carrying on of any mercantile or other business. The 
 pub!-:c is invited to the room, not for the purpose of mere social 
 inter-course, but for the purpose of availing itself of the 
 ])rofessional advice and treatment of the petitioner; and I take it 
 that to this extent the portion of a building occupied by an office 
 IS subordinated to its use for residential purposes. While it mav 
 be said that the evil to the family of the petitioner is just as 
 Sr'-M' as though the building were occupied exclusivelv as a resi- 
 de r-.co, y, ( ,vith this the court can have nothing to do ' The Leois- 
 lature has seen fit to impose the restriction and to confine the 
 operation of the stalute to the buildings that are used exclusivelv 
 for ...s.denlial ,,ur,..s,>s. The remedy, if anv. lies with the leois- 
 
Liquor Tax Law 105 
 
 hitive power, and the court lias no discretion to exercise in the 
 premises. 
 
 I think the petitioner has failed to sustain the allegations of 
 his petition and the application to revoke or cancel must be 
 denied. 
 
 City Court of New York, General Term, December, 1896. Reported. 
 
 18 Misc. 604. 
 
 Matter of Herman^ et al., Judgment Creditors v. Boreis M. 
 GooDSox, Judgment Debtor. 
 
 W. Harry Cohen^ as Receiver, Appellant; The S. Libbman Sons 
 Brewing Co., Eespondent. 
 
 Excise — Assignment of certificate. 
 
 An assignment of a liquor tax certificate can not be treated as a nullity 
 or attacked collaterally by a receiver of the licensee; if he desires to 
 question its legality he must do so by action to set It aside. 
 
 Appeal from an order requiring the receiver to surrender a 
 liquor tax certificate to the brewing company. 
 
 W. O. Campbell, for appellant. 
 
 Samuel Hoff, for respondent. 
 
 FrrzsiMONS, J. The defendant and judgment debtor herein, 
 desiring, prior to the judgment herein, to carry on a saloon 
 business in this city, applied to and received from the propei* 
 authority a license to carry on such business. 
 
 The license fee of |800 was loaned him by the S. Liebman Sons 
 Brewing Company, and it received from him an assignment of 
 such license ; the deputy excise commissioner, upon receipt of said 
 fSOO and it having been established to his satisfaction that Good- 
 son was a proper person to receive such license, issued it to him ; 
 a receipt for said license fee, which empowered said Goodson to 
 carry on said saloon business until a license was issued to him, 
 and the assignment herein referred to was made prior to the; 
 issuance of the said license. 
 
 The judgment herein was obtained against the said Goodson, 
 the receiver herein was appointed and he received from the 
 
106 Decisions Relating to 
 
 judgment debtor the liquor tax certificate and lie then applied to 
 the excise commissioner for the rebate moneys due to the judg- 
 ment debtor on the unexpired coupons on said certificate just as 
 if the judgment debtor had presented same for surrender and 
 cancellation, as allowed him by the Excise Law of 1896. 
 
 Because of such action of the receiver, an order to show cause 
 was granted herein, and an order thereon was made requiring 
 the said receiver to surrender to the brewing company the said 
 certificate because of the assignment of the same to the said 
 company. From said order this appeal is taken. 
 
 The order appealed from, in our judgment, was a proper one. 
 
 Chapter 112 of the Laws of ISOi; permits an assignment of the 
 liquor tax certificate in question to be made. 
 
 If the receiver desires to question the legality of such transfer, 
 he should do so by the usual action to set the same aside and not 
 attack it collaterally or regard it as a nullity, as he has 
 endeavored to do in this instance. 
 
 Such assignment must stand until it is duly set aside by a 
 competent tribunal and by lawful means, not arbitrarily and by 
 mere physical force. 
 
 The order appealed from must be affirmed, with costs. 
 
 O'Dwyer, J., concurs. 
 Order affirmed, with costs. 
 
 Supreme Court, Albany Special Term, December, 1896. Reported. 
 
 18 Misc. 653. 
 
 Matter of the Petition of Frederick Zixzow to Revoke a Liquor 
 Tax Certificate Issued to Peter Schmidt. 
 
 1. Excise — Location of building. 
 
 A building which is situated on the corner of two streets is a building 
 on one of the streets as well as on the other, and the prohibition against 
 the carrying on of the liquor traffic therein within 200 feet of a church 
 or schoolhouse applies, notwithstanding that the entrance is on another 
 street. 
 
 2. Same — Effect of abandonment of a saloon. 
 
 The owner of such a building who was carrying on a saloon therein at 
 the time of the passage of the Excise Law of 1892, quit the business there- 
 after and leased the premises to a tenant who obtained a license and 
 
LiQUOE Tax Law 107 
 
 carried on a saloon business there until May 1, 1896. Held, that by the 
 abandonment of the business by the owner the exemption from the 
 restrictions in the Law of 1892 were lost, and that the licenses to the 
 tenant were, therefore, improperly granted and the traffic in liquors was 
 not lawfully carried on there at the time when the Liquor Tax Law took 
 effect. 
 
 3. Same — Church. 
 
 A building is not the less exclusively used as a church because one of 
 its rooms is used for a parochial school and also by societies connected 
 with the church or by religious and charitable societies which the church 
 authorities permit to hold meetings therein. 
 
 Application to revoke a liquor tax certificate. 
 
 James H. Coyle (J. P. Montignani, of counsel), for petitioner. 
 
 John Gutmann, for defendant. 
 
 Nussbaum & Coughlin, for county treasurer. 
 
 Chester^ J. The petitioner, who is a citizen of the State and 
 a trustee of the church hereinafter mentioned, seeks to procure 
 the revocation of a liquor tax certificate issued to the defendant 
 Peter Schmidt by the county treasurer of Albany county to traffic 
 in liquors at 56 Elizabeth street, in the city of Albany, upon the 
 ground that material statements in the application for such cer- 
 tificate are false and that the defendant is not entitled to hold the 
 certificate. 
 
 The applicant stated in his application that the location of the 
 premises where he proposed to carry on business was at 56 Eliza- 
 beth street, Albany; that the traffic in liquors was actually law- 
 fully carried on in said premises at the time of the passage 
 of the Liquor Tax Act; that he could lawfully carry on such 
 traffic on such premises under subdivision 1 of section 11 of said 
 act, and that he was not within any of the prohibitions of the 
 act. The petitioner insists that all these statements are false. 
 
 The controversy arises principally over three questions : First. 
 Whether the premises were 56 Elizabeth street or 64 Alexander 
 street. Second. Whether or not the traffic in liquor was law- 
 fully carried on in the premises in question at the time of the 
 passage of the Liquor Tax Act ; and, Third. Whether or not the 
 Deutsche Lutherische St. Trinitatis Kirche, known as the German 
 
H)H Decisions Riclatixg to 
 
 Trinity Ciiurcli, on AlexaiHici- street, is a building occupied ex- 
 clusively as a church or a schoolhouse. 
 
 First. The saloon occupied by the defendant is situated on the 
 southeast corner ot Alexander and Elizabeth streets, and the en- 
 trance thereto, whether on Alexander street, as formerly, or on 
 Elizabeth street, as now, is within two hundred feet of all en- 
 trances to the church in (jiiestion. Alexander street runs east 
 and west, and Elizabeth street north and south. The church is 
 on the south side of Alexander street, on the same side of the 
 street as the Schmidt premises, and about seventy-eight feet to 
 the east thereof. 
 
 The entrance to the saloon, prior to the taking effect of the 
 Liquor Tax Art, which was on the 23d day of March, 1896, had 
 been on Alexander street and the street number was 64 Alexander 
 street. There had, however, been an entrance on Elizabeth street 
 to the basement, (he Hoor below the part of the building used as 
 a saloon, whicli had been known for some years as 56 Elizabeth 
 street, and which entrance was some thirty or forty feet from 
 Alexander sti-eet. There had been no entrance directly to the 
 room used as a saloon from Elizabeth street up to that time. 
 
 On the next day, March 24th, a new doorway was cut from 
 Elizabeth street into the saloon about three or four feet from the 
 corner of Alexander street and the door leading directly to the 
 saloon on the latter street was nailed up. The new entrance 
 was numbered 50 Elizabeth street. There still remained, aftec 
 these changes were made, an entrance by way of a hall-door on 
 Alexander street through a hallway and an interior hall-door 
 to the saloon. 
 
 I do not regard these changes in the entrance or the question 
 as to whether the building was 56 Elizabeth street or 64 Alex- 
 ander street as controlling upon the question as to whether or 
 not it was within the prohibited distance from the church in 
 question. In either event the saloon was in' the same room, and 
 the building, being on the corner, was a building on Alexander 
 street as well as on Elizabeth street. The statute provides that 
 the traffic in liquor shall not be permitted in any building which 
 shall be on the same street and within two hundred feet of a 
 building occupied exclusively as a church or a schoolhouse. 
 Liquor Tax Act, chap. 1]2, Laws 1896, §24. The building in 
 question is on the same street and within the prohibited distance 
 and the prohibition applies notwithstanding the entrance is on 
 
Liquor Tax Law 109 
 
 another street. People ex reL Clausen v. Murray, 5 App. Div. 
 441 ; Commonwealth v. \N'helan, liU Mass. 306. 
 
 The question as to whether the saloon was at 64 Alexander 
 street, or at 56 Elizabeth street, is material, however, in deter- 
 mining whether some of the statements made in the applicatio/i 
 are true or false. All the licenses for this saloon prior to the 
 time of the enactment of the Liquor Tax Act had been for 64 
 Alexander street, but it appears that on the day of the passage 
 of that law the board of excise of the city of Albany granted a 
 license to Louis or Alois Einn to sell strong and spirituous liquor, 
 ales, etc., at Xo. 56 Elizabeth street, which was afterward trans- 
 ferred to ')S Elizabeth street. The defeodant may have believed 
 that because of this license he was truthfully stating what he did 
 in his application with reference to the location of the premises 
 where he desired to traffic in liquors and in stating that he could 
 lawfully cany on the traffic there, yet if that license was not 
 lawfully issued, or if the traffic was not lawfully carried on there 
 at the time, while the former statement might have been true the 
 latter would be false. 
 
 Second. Was the traffic in liquor lawfully carried on in the 
 premises at the time of the taking effect of the Liquor Tax Act? 
 
 Tt appears that the building in question is owned by the de- 
 fendant Peter Schmidt and that for about nine years prior to and 
 including the 30th day of April, 1S92, he kept a saloon there 
 under licenses issued to him by the excise board of the city of 
 Albany. He then quit the business and leased the premises to 
 Louis Einn, who took possession May 2, 1892, and carried on the 
 saloon business there under license from such excise board until 
 the 1st day of May, 1S96. Before taking possession of these 
 premises Einn had been conducting a licensed saloon on Second 
 avenue. 
 
 The Liquor Tax Law, in section 24, provides that traffic in 
 liquor shall not be permitted under the provisions of subdivision 
 1 of section 11, ''in any building which shall be on the same street 
 or avenue and within two hundred feet of a building occupied 
 exclusively as a church or schoolhouse; * * * provided, 
 however, that this prohibition shall not apply * * * to a 
 l>]ace in which such traffic in liquors is act;ually lawfully carried 
 on when this act takes effect." 
 
 The act took effect March 2.3, 1896. The traffic in liquor was 
 Ihen carried on there by Louis Rinn, and had been since May, 
 
110 Decisions Relating to 
 
 1892, as above stated. During the time Rinn occupied the place 
 
 &c]imidt had no connection with the business. 
 
 To determine, then, whether Rinn was lawfully carrying on 
 this traffic there at the time the Liquor Tax Law of 1896 took 
 effect, it is necessary to refer to the law in force during the time 
 Rinn occupied this place and prior to the taking effect of the 
 present law. 
 
 The Excise Law (Chap. 401, Laws of 1892), which was passed 
 April 30th of that year, and took effect immediately, provided, in 
 section 13, that "no person or persons who shall not have been 
 licensed prior to the passage of this act, shall hereafter be licensed 
 to sell strong or spirituous liquors, wine, ale and beer, in any 
 building not used for hotel purposes, and for which a license does 
 not exist at the time of the passage of this act, which shall be on 
 the same street or avenue and within two hundred feet of a 
 building occupied exclusively as a church or a schoolhouse." The 
 section was amended in 1S93 by chapter 480, section 11, but the 
 above-quoted clause was not changed by the amendment. 
 
 The restrictions in the act of 1896, above quoted, clearly apply 
 to the building in which the traffic is to be carried on, but the 
 language of the restriction in the act of 1892, above quoted, has 
 been construed to apply not only to the person seeking a license 
 but to the place for which he seeks it. People ex rel. Cairns v. 
 JIurray, 148 N. Y. 171. 
 
 The case cited also holds that when the licensee, established at 
 a place when the act of 1892 took effect, abandoned the business, 
 the prohibition of the statute became absolute as to all ne>v 
 applicants. 
 
 With this construction of the Excise Law of 1892 as our guide, 
 it is clear that the licenses to Rinn for 64 Alexander street and 
 the later one for 56 Elizabeth street, which, in either case, was the 
 building m question, were improperly granted, and that, there- 
 fore, the traffic m liquors was not lawfully carried on there at 
 the time the Liquor Tax Act of 1896 took effect, and also that 
 when Schmidt, the defendant, quit the liquor business and left 
 that place in May, 1892, he lost whatever rights he might have 
 had m that respect under that law if he had remained. See also 
 Matter of Ritchie, 18 Misc. Rep. 341; People ex rel. Sweeney o. 
 Laramerts, id. 343. 
 
 . Third But it is urged that the church in question was not 
 occupied exclusively as a church, and, therefore, that the 
 
Liquor Tax Law 111 
 
 prohibition of the act does not apply. The organization owning 
 the church building is a regular incorporated religious society, 
 which has worshipped in this building for twenty years, being 
 accustomed to hold two preaching services and two Sabbath- 
 schools there every Sunday. The first or principal floor of the 
 building, having its entrance on Alexander street, is used for the 
 ordinary and usual religious services by the congregation 
 worshipping there, and for weddings, baptisms and funerals. 
 There seems to be no question that this, the principal floor of the 
 church building, has always been and is now occupied exclusively 
 as a church. Under this floor there is a basement, the front part 
 of which is used for storage of fuel for the heaters and for 
 church closets. The back or the south end of the basement con- 
 tains a room fitted up as a schoolroom with desks, wardrobes, 
 benches, chairs and tables. This room is used for the meetings of 
 the trustees of the church and has been used for festivals, fairs, 
 concerts and other church entertainments which have from time 
 to time been held there for the purpose of raising funds for the 
 church. x4]l these uses are so clearly and so closely connected 
 with the usual functions of a modern church organization as not 
 to impair in any way the exclusive occupancy of the building as 
 a church. The room in question is also occupied upon certain 
 week days as a parochial school, under the direct care and control 
 of the church and attended mainly by the children of the church 
 members, but, as the act prohibits the liquor trafiic within 200 
 feet of a school as well as of a church, it is not important to 
 consider that fact upon the question we are now discussing. 
 
 The contention of the defendant on this branch of the case 
 comes principally, however, from the fact that various associations 
 and societies have been allowed to meet from time to time in the 
 room in question. With reference to the meetings of the Concordia 
 Singing Society, the Women's Society and the Young People's 
 Society of the church, it is sufflcient to say, that the proof shows 
 that they are so intimately and closely connected with the work 
 and purposes of the church that they may fairly be considered 
 parts of it. 
 
 A society, known as the First German Protestant Society, also 
 meets in this room once a month. It pays the church |25 a year — 
 not as a rent, but to cover the expenses for light, fire and cleaning. 
 Many of its members and most of its officers belong to the 
 church or congregation in question. While some are mem- 
 
113 13ECISIOX8 ElOLATING TO 
 
 bers of other churches, all are members of some church. The 
 constitutiou and by-hnvs show that, while this is a benefit society 
 to the extent of assessing its members for the purpose of raising 
 moneys to pay death benefits and for the relief of sick members, 
 yet that it is esseutially a religious and charitable association, 
 organized "to accomplish a more intimate coalition and alliance 
 of the members of the Protestant faith in the city of Albany and 
 vicinity," and "to give Protestants, through closer alliance, op- 
 portunity to foster, protect and defend their faith against all at- 
 tacks." Its membership is limited to those of the Protestant 
 faith, who are required to subscribe to certain religious 
 principles, including "faith in the Trinity of God and in the Holy 
 Bible," as a condition of membership. The directors are regarded 
 as elders of the society. The organization has no contract right, 
 unless it be an implied one to meet in this room, and is simply 
 suffered or permitted by the church to occupy it upon the terms 
 stated, and the ])rivilciies given them by the church are revocable 
 by the church at pleasure. 
 
 Substantially, the same remarks are applicable to the Men and 
 Young Men's Society, which also meets here. While the society 
 is also a benefit society, yet its constitution shows that it is essen- 
 tially a religious society, organized for tlie purposes of effecting 
 a closer communication among the members of the church, of 
 sustaining the church, promoting Christian culture and inducing 
 outsiders to join the church, and its meetings are opened and 
 closed with prayer, in accordance with a ritual used by it. 
 
 It appears to me, from a careful examination of the constitu- 
 tions of the t-tt-o last-named societies, which are the only ones 
 meeting there which may not be properly considered under the 
 proofs as directly connected with the church organization in 
 question, that if either of them used the building in question for 
 the purpose of its individual organization alone, it could still 
 be fairly regarded as a church, within the meaning of that term, 
 as used in this statute. 
 
 The statute in question is to be liberally construed to give full 
 effect to the beneficent purpose for which it was enacted, which 
 is the protection of the church and the school from the influences 
 of the saloon. People ex rel. Clausen v. Miwray, 5 App. Div. 441. 
 
 To say that because two or more religious societies occupy the 
 same building for their meetings renders the building one not 
 exclusively occujiied as a church, and that, therefore, neither 
 
Liquor Tax Law 113 
 
 would be entitled to the protection of the statute, would be an 
 absurd perversion of Justice. It would rather, it seems to me, be 
 an added reason for applying the protection of the statute. 
 
 A church has been defined to be "a building consecrated to the 
 honor of God and Religion." Anderson's Law Dictionary, title 
 "Church", Eobertson v. Bullions, 9 Barb. 95. 
 
 Bouvier defines a church to be "a society of persons who profess 
 the Christian religion," and "the place where such persons regu- 
 larly assemble for worship." Bouvier's Law Dictionary, title 
 "Church." 
 
 I think the word "church," as used in the statute, is .compre- 
 hensive enough in its meaning to include all the multifarious 
 denominations or societies of those professing the Christian faith, 
 no matter what their varying shades of belief or doctrine may be, 
 and no matter with what ceremony or absence of ceremonies 
 their faith may be evinced. 
 
 If I am right in this view, the word is broad enough to include 
 each of the two societies in question and the building devoted to 
 their meetings. But if I am wrong in this respect, I have no 
 hesitation in holding that the occasional or even the regular 
 meeting of these societies in this room, by permission of this 
 church, does not in any way impair the exclusive occupancy of 
 the building as a church, for the reason that they are essentially 
 religious and charitable organizations closely allied in their 
 principles and in their work to the purposes of the church at 
 large, if not of this particular church. 
 
 It does not matter that these two societies have, as an incident 
 of their religious and charitable work, the raising of moneys for 
 the relief of sick members and of the widows and orphans of de- 
 ceased members. Some may regard this feature as of a secular 
 rather than of a religious character, but every religious society 
 must, in the nature of things, have more or less to do with secular 
 affairs in conducting the business necessarily incident to main- 
 taining its organization and prosecuting its work. Because this 
 incidental business happens to be transacted by the society in the 
 church building does not render it one not exclusively occupied 
 for its primary and chief purposes as a church. 
 
 I think this view is clearly in harmony with the authorities and 
 that the building in question is, under the proofs in this case, oc- 
 cupied exclusively as a church and schoolhouse. People ex rel. 
 
114 DecisiOiVS Relating to 
 
 Cairns v. Miuray, 148 N. Y. 171; People ex rel. Clausen v. 
 Murray, 5 App. Div. 441. 
 
 It follows that the defendant is not entitled to hold the cer- 
 tificate issued to him and that the same should be revoked and 
 canceled, with costs to the petitioner, to be taxed in such sums 
 as may properly be allowed under section 3240 of the Code of 
 Civil Procedure. 
 
 Ordered accordingly. 
 
 Second Appellate Department, December, 1896. Reported. 11 App. Div. 74. 
 
 The People of the State of New York ex rel. Martin 
 Anderson, Appellant, v. John Hoag, Treasurer of the County 
 of Westchester, Respondent. 
 
 Liquor Tax Law — Determination as to dwelling within 200 feet — A saloon. 
 
 Under the Liquor Tax Law (Chap. 113 of the Laws of 1896) it is for 
 the county treasurer to determine from the application, or otherwise, the 
 number of buildings occupied exclusively as dwellings, whose nearest 
 entrance is within 200 feet of the nearest entrance to premises in which 
 It is proposed to carry on the traffic in liquor. 
 
 The return to a writ of certiorari issued to review the determination of 
 a county treasurer, refusing to issue a liquor tax certificate, stated that 
 the applicant had not procured the consent of two-thirds of the owners 
 of such buildings. 
 
 Held, that the return was conclusive upon the question, and that the 
 county treasurer's determination should be affirmed. 
 
 Appeal by the relator, Martin Anderson, from an order of the 
 Supreme Court, made at the T\'estchester Special Term and 
 entered in the office of the clerk of the county of Westchester on 
 the 30th day of September, 1896, affirming the decision of the 
 county treasurer denying the application of the relator for a 
 liquor tax certificate, and quashing a writ of certiorari issued in 
 the proceeding. 
 
 Frederick W. Sherman, for the appellant. 
 
 Wilson Brown, Jr., for the respondent. 
 
 Brown, P. J. The application of the relator for a liquor tax 
 certificate having been refused by the county treasurer, he applied 
 
LiQuoE Tax Law 115 
 
 to a justice of the Supreme Court for a writ of certiorari to 
 review tlie action of such oflBcer. The writ was granted, and the 
 county treasurer having made his return thereto, upon the hearing 
 had the relator's application for such certificate was denied and 
 the writ quashed, and from the order entered upon such hearing 
 the relator has appealed to this court. 
 
 From the return of the county treasurer it appears that written 
 application for the certificate was made by the relator upon a 
 blank furnished to him by the county treasurer. Upon such 
 blank there were printed questions, numbered respectively from 
 1 to 11, the answers to which were written by the applicant, and 
 this statement was subscribed by the applicant and sworn to on 
 the 10th day of September, 189G. It contained all the information 
 which section 17 of the Liquor Tax Law (Laws of 1896, chap. 112) 
 requires that applicants for such certificates shall furnish. Among 
 other matters, it stated that there were three buildings occupied 
 exclusively for dwellings within 200 feet of the nearest entrance 
 to the building where the liquor traflflc was to be carried on, each 
 building having a separate owner. There was also filed with the 
 application a consent by Patrick T. Mongan, the owner of the 
 building, to tlie carrying on of the traffic in liquors therein, and 
 also a consent in writing signed by Mrs. M. Provoost and Joseph 
 S. Provoost, owners of buildings occupied exclusively as dwellings 
 and situated within -OO feet of the nearest entrance to the 
 premises described in the statement, consenting that the traffic in 
 liquors should be carried on in such premises. 
 
 The said county treasurer further returned that before such 
 application had been received by him the said Joseph S. Provoost 
 had filed with him a paper withdrawing his consent, and further, 
 that upon investigation he ascertained that there were five build- 
 ings used exclusively as dwellings within the prohibited distance 
 of the building where said trafSc was to be carried on, and that 
 the relator was left without the consent of two-thirds of the 
 owners of houses used exclusively as dwellings within 200 feet of 
 said property, and that for such reasons he denied said applica- 
 tion and refused to issue the certificate. 
 
 We are of the opinion that the order appealed from must be 
 affirmed. Section 19 of the Liquor Tax Law provides that "When 
 the provisions of sections seventeen and eighteen of this act have 
 been complied with and the application provided for in section 
 seventeen is found to be correct in form and the bond required by 
 
ll(j Decisio>'s Kei.atixc to 
 
 section eijiliteen is found to I)e correct as to its form and the 
 sureties tliereon are appro\cd as sufficient ]>y the county 
 treasurer," then upon the payment of the taxes levied, etc., "the 
 county treasurer of the county * * * shall at once prepare 
 and issue to the * * * person making such application 
 
 * * * a liquor tax certificate in the form provided for in 
 this act." 
 
 Section 17 provides that every person applying for a certificate 
 shall make upon a blank, to be furnished by the county treasurer, 
 a statement setting forth: First, the name of the applicant; 
 second, the name of every person interested or to become interested 
 in the traffic in liquors; third, the premises where such business 
 is to be carried on; fourth, under which of the first three sub- 
 divisions of section 11 of the act the traffic is to be carried on; 
 and, fifth, a statement that the applicant may lawfully carry on 
 such traffic. It further provides, in subdivision 8, that "when 
 the nearest entrance to the premises described in said statement 
 as those in which traffic in liquor is to be carried on is within 
 two hundred feet of the nearest entrance to a building or build- 
 ings occupied exclusively for a dwelling, there shall also be so 
 filed simultaneously with said statement a consent in writing,"' 
 executed at least by two-thirds of the owners of the buildings, 
 that such traffic in liquors may be carried on in the premises 
 described in the statement. 
 
 It is the contention of the appellant that the county treasurer 
 is bound by the statements in reference to the aforesaid facts 
 made by the applicant, and that if such statement is correct in 
 form, the county treasurer has no discretion except to issue the 
 certificate. It will be observed, however, that section 17 does not 
 require that any information in reference to the contiguity of 
 dwellings to the place where the traffic is to be carried on shall be 
 furnished by the applicant. All that that section provides is 
 that the consent of two-thirds of the owners of dwellings within 
 the prohibited distance shall be filed simultaneously with the 
 statement. 
 
 So far as it is to be fiallicred from the statute the facts in 
 reference to the contiguity of such dwellings is to be ascertained 
 and determined by the county treasurer. He may obtain or 
 require information on this subject from the applicant and may 
 rely thereon, but he is not necessarily concluded thereby. In 
 respect to such matters his determination is judicial. He must 
 
Liquor Tax Law 117 
 
 ascertain aud determine the number of dwellings within the 
 prohibited distance, and there must be filed with him the consent 
 of the necessan- two-thirds of the owners of such buildings. His 
 determination in that respect is subject to review by a judge of 
 the Supreme Court upon a writ of certiorari, and is to be affirmed 
 in case the reasons assigned for refusing to grant the certificate 
 are good and valid. It appears in the case before us that the 
 county treasurer refused to grant the certificate to the relator 
 upon the ground that there were five buildings vised exclusively 
 as dwellin<;8 within 200 feet of the nearest entrance to the place 
 where the relator proposed to carry on the traffic in liquors, and 
 that Two-thirds of the owners of such buildings had not given 
 their consent to such traffic. Upon this question his return is 
 conclusive. 
 
 Lpon the facts stated the application was properly denied by 
 the county treasurer, and the order appealed from must be 
 affirmed, with ten dollars costs and disbursements. 
 
 All concurred, except, Cdllen^ J., who concurred in the result. 
 
 Order affirmed, with ten dollars costs and disbursements. 
 
 Fourth Appellate Department, December, 1896. Reported. 12 App. Div. 625. 
 
 People ex rel. William Holz, Appellant i\ Daniel O'Geady, 
 as Special Deputy Commissioner of Excise of Erie County, 
 Eespondent. 
 
 Appeal from an order dismissing writ of certiorari to review 
 the refusal of the respondent to issue a liquor tax certificate 
 because of false statement in application. 
 
 Frederic H. Pomeroy, for Appellant. 
 
 The special deputy commissioner has no discretionary or 
 judicial authority by virtue of which he may grant or refuse a 
 certificate at his option. (Liquor Tax Law, §§ 17, 18, 19; People 
 ex rel. Rochester Whist Club v. Eamilfon, 17 Misc. 12). 
 
 Tlie applicant in his statement, swearing that there are no 
 
118 Decisions Relating to 
 
 buildings within two hundred feet used exclusively as dwellings, 
 the commissioner is bound by such statement. 
 
 Henry W. Brendel, for Respondent. 
 
 The order is not appealable. (Liquor Ta>x Law §28; Code 
 Civil Proc. §1361). The return ol' the Special Deputy Commis- 
 sioner as to the facts therein stated is conclusive. (People ex rel. 
 Sims V. t'oinmrs. 73 X. Y. 437; People ex rel. HUnonds v. Ryken, 
 6 Hun, 62.J.) 
 
 "Where the (Jommissioner of Kxcise has knowledge of any fact 
 which, if stated in the application, would prevent the issuance of 
 the certificate, he can deny the application. 
 
 Order affirmed with ten dollars costs and disbursements. All 
 concurred. 
 
 Supreme Court, Kings Special Term, January, 1897. Unreported. 
 
 In the Jlatter of the I'etition of Harry W. ]\[ichbll for an 
 Injunction against John Pltnn. 
 
 Osborne, J. S. C. I agree with the reasoning in "Brown r. 
 Hilton, 40 Mass. E. 319" and "Cobb v. Billings, 23 Maine, 470" 
 and am of the opinion that the sale by Phnn of the six gallons 
 of liquor at one time, though of two different kinds, was not a 
 "trafficking in liquors in quantities of less tJian five wine gallons." 
 
 Motion for injunction denied. 
 
 Supreme Court, Kings Special Term, January, 1897. Unreported. 
 
 In the Matter of the Application of Harry W. Michell for an 
 Injunction against L. Rothbr. 
 
 Gaynor, J. I would say that it seems to me that it is the duty 
 of the attorney to the special deputy commissioner in all cases 
 like this, to submit a brief suggesting his views of the law. Does 
 he claim that the respondent may not sell at the licensed place 
 
LiQUOK Tax Law 119 
 
 in Queeus county goods to be delivered outside the county? The 
 respondent says that the deliveries in Brooklyn that are com- 
 plained of were upon orders that had been previously made. He 
 does not say where these orders were given, and the sales were 
 effected. I shall, therefore, presume that the orders were taken 
 on the sales in Brooklyn and grant the injunction. Under the 
 law the place of business is licensed. A person with a place 
 licensed in Queens county, by that fact can not make sales out- 
 side that county. 
 
 County Court, Otsego County. January, 1897. Unreported. 
 People v. Jerome B. Wolcott. 
 
 Barnum, Co. J. Demurrer to indictment against defendant 
 charging him with having on the 15th day of January, 1897, at 
 the town of Exeter in this county, unlawfully during the hours 
 between one o'clock A. M. and five o'clock A. M., had a curtain 
 that obstructed the view of the bar or place in a certain building 
 where liquors were kept for sale by the defendant. 
 
 Section 31 of Laws of 1896, Chap. 112, under which the indict- 
 ment is sought to be sustained, so far as material to this case is 
 as follows : "' It shall not be lawful for any * * * person 
 whether having paid such tax or not to have during the hours when 
 the sale of liquor is forbidden, any curtain, screen or blinds, 
 opaque or colored glass, that obstructs the view from the sidewalk, 
 alley or road in front of, or from the side or end of the building or 
 the bar or place in such building where liquors are sold or kept 
 for sale." 
 
 No penalty or punishment is prescribed for a violation of the 
 provision of the statute above cited, except under the provisions 
 of section 42 (section 34, subd. 5) of the same chapter which 
 reads as follows: 
 
 "Section 42 (34 subd. 5). Violations of this act generally. 
 Any wilful violation by any person of any provision of this act 
 for which no punishment or penalty is otherwise prescribed, shall 
 be a misdemeanor." 
 
 It is manifest that no crime is committed under the above pro- 
 vision of the statute, unless the act is wilfully done. 
 
 It is claimed bv the defendant that the indictment does not 
 
120 Decisions Kelating to 
 
 charge the commission of a crime because it does not allege that 
 the act was done wilfully. 
 
 The people claim that the indictment is in the exact language 
 i»l' the statute and is sufficient. 
 
 It seems to me that the exact language of the statute would 
 embrace the words prescribing the conditions requisite to make 
 ihe act criminal, and that an indictment embracing the sub- 
 stance of the statute should allege that the act was wilfully done. 
 
 The use of the word wilfully in the section prescribing a 
 penalty indicates that the intent is an essential ingredient of the 
 crime. 
 
 It is said in Eice on Criminal li)videncej 399: "A crime is made 
 up of acts and intent and those must be set forth in the indict- 
 ment * * *" 
 
 As in order to make acts criminal they must be done with a 
 criminal mind, the existence of that criminality of mind must be 
 alleged. 
 
 In People v. ^^'est, 106 N. Y. 29.5, the indictment accused the 
 defendant of the crime of watering milk and bringing the same 
 to a cheese factory for the purpose of making the same into 
 cheese. 
 
 The Court says, " The indictment follows the language of the 
 statute, and the general rule is Avell settled that an indictment for 
 a statutory offense, and especially when the offense is a mis- 
 demeanor, charging the facts constituting the crime in the words 
 of the statute * * * is good as pleading and justified putting 
 the defendant on trial." 
 
 But the reasoning of this case does not apply to the case at 
 bar. The indictment, even in case the crime charged is a mis- 
 demeanor, where the statute does not make the commission of the 
 act a crime independent of the intent, should charge a criminal 
 intent and the words of the statute declaring the act a crime, if 
 done wilfully, should be embraced in the indictment if the pleader 
 seeks to rely upon the rule as laid down in the case above cited, 
 and in other cases cited by the district attorney. 
 
 The intent could have been alleged in general terms but there 
 should be an allegation sxifficient to amount to an accusation in 
 effect that the act was wilfully done. 
 
 In People v. D'Argencour, ;',2 Hun, 179, (affirmed 95 N. Y. C.^1), 
 it was objected that the indictment was defective because the in- 
 tent to defraud was not alleged. 
 
Liquor Tax Law 121 
 
 The Court says : "As the statute was framed under which the 
 indietment was found an averment of this intent seems to have 
 been essential, for tlie acts charged only constitute an ofEense 
 when they have been committed with the intent to defraud 
 * * * It clearly contemplates the necessity of such au aver- 
 ment, without it the indictment was probably defective." 
 
 It was also held that the intent must be a^lleged in People v. 
 Lohman, 2 Barber, 221, affirmed, 1 N. Y. 382. 
 
 It was held in People v. Lowndes, 130 N. Y. 463, that "while 
 the words used in a statute to define a crime need not be strictly 
 pursued in the indictment, words conveying the meaning of those 
 employed by the statute to express the ingredients of the ofEense, 
 may be used. Imperfections in matter of form may be disre- 
 garded, but the substance of ail that is requisite to the offense 
 must be alleged." 
 
 In the case at bar it is requisite to make the act complained of 
 a crime, tliat it be done wilfully. 
 
 An essential ingredient of the crime is that the act be done 
 wilfully. 
 
 The indictment failing to state that the act was wilfully done 
 fails to charge an essential element of crime under the statuTf^ 
 and is fatally defective. 
 
 The demurrer is sustained. 
 
 County Court, Albany County, January, 1897. Reported. 19 Misc. 96. 
 Matter of Xathaxiel Niles v. Martin Matiiusa. 
 
 Liquor Tax Law — Assignability of certificate. 
 
 A liquor tax certificate is a chose in action capable of assignment, and 
 an assignment thereof to one who advances the money for its purchase 
 Is paramount and prior to the claim of a judgment creditor. 
 
 Application for receiver in supplementary proceedings. 
 
 Henry A . Peckham, for plaintiff. 
 
 Scherer & Downs, for Hinckel Piewing Company, an inter- 
 vening party. 
 
122 Decisions Relating to 
 
 Gregory^ J. This is a motion lor tht^ appointment of a receiver 
 in suppleiiii'iUaiy procccdinfiH oT the dd'endunt's property. 
 
 The defendant is a saloon ke('])er in the city of Albany, and 
 duly obtained a license from the State of New York, in com- 
 pliance with the Liquor Tax Law, to sell li(iiior, etc. In order to 
 obtain this license he ])orro\\'ed the money necessary therefor from 
 the Hinckel lirewini; Coinpaiiy and on June 6, 1896, executed and 
 delivered to Ihe brewing company the following instrument in 
 writing: 
 
 "I hereby agree to assign, transfer and set over to the Hinckel 
 r.rewing Company, on demand, license No. 13,79.5, taken out in 
 my name r<ir and in consideration of the sum of .i?2s.3..3;;, loaned 
 to me for the j.urpose <if purchasing said license, to be the 
 l>roiK'rty of the Hinckel Tirewing Company, and until the said 
 sum of .'it;2s;',.;;:! is paid in full the license is the property of said 
 comjiaiiy." 
 
 Tlie brewing company in(erven(>s upon this motion, and insists 
 that if a receiver of the defendant's property be appointed, the 
 defendant should be ordered, or permitted, to transfer, or assign, 
 the liquor tax cerlilical.- to it, and that the injunction issued in 
 the supplementary jiroceedings be modified to that extent. The 
 plainliff objecls lo this, and ( laims that the title, or rights, under 
 the liquor tax .•ertificate should be transferred to the receiver, 
 taking the ground that the instrument executed by the defendant 
 to the brewing comjiany is merely an agreement by way of 
 collateral securily, and there having been no change of position 
 of the mortg.aged or assigned property, the agreement is void 
 under the law relating to chattel mortgages. I can not agree 
 with this proposition. The liquor tax certificate is, in my opinion, 
 a chose in action capable of assignment. It is the evidence of a 
 right lo do certain things under the statute, and it has a definite 
 and fixed value on the first day of each month prior to its 
 expiration. Chapter 112, Laws of 1896, §25. 
 
 II has been well settled in this State that a debt or chose iu 
 action may he transferred or assigned, either by parol or writing. 
 "I( m.illers not that the agreement on which the plaintiff relied 
 was by parol and not in wriling. The agreement was founded 
 upon an ,i(le(|iiate consideration, and is just as valid and effectual 
 as if made iu writing. Risley v. Phenix Bank, 83 N. Y. ai8-;!2S, 
 38 Am. Keji. I.'U. Not only can a chose in action be assigned by 
 
 a 
 
Liquor Tax Law 123 
 
 parol, but a lien upon it can be created by parol." Williams v. 
 Ingersoll, 89 N. Y. 508-521. 
 
 The question here involved has, to a certain extent, been con- 
 sidered in at least two cases very recently, in each of which it has 
 been held that an assignment of a liquor tax certificate to one who 
 advances the money for the purchase of the same is paramount 
 and prior to the claim of a judgment creditor. Herman v. Good- 
 son, 18 Misc. Eep. 601 ; Matter of Jenney, Receiver, Hiscock, J., 
 at Special Term, at Syracuse. (Not yet reported.) 
 
 Let an order be entered appointing a receiver of defendant's 
 property, and modifying the injunction order heretofore granted 
 so as to permit the defendant to transfer and deliver the liquor 
 tax certificate in question to the Hinckel Brewing Company. 
 
 Ordered accordingly. 
 
 Supreme Court, Onondaga Special Term, January, 1897. Reported. 
 
 19 Misc. 244. 
 
 Matter of the Application of Albxandbe D. Jenney^, Receiver, 
 Etc., of -Julius Lenz, a Judgment Debtor, for a Writ of 
 Mandamus. 
 
 1. Excise — Liquor tax certificate — Assignment. 
 
 A liquor tax certificate and the rights thereunder are subject to 
 transfer and assignment. 
 
 2. Same — Need not be filed. 
 
 The statutory provision in relation to filing chattel mortgages does not 
 apply to an assignment of a liquor tax certificate, made to secure repay- 
 ment of money advanced to pay therefor and for goods purchased, 
 especially as against a receiver of the licensee appointed in supplementary 
 proceedings. 
 
 This is an application for a writ of peremptory mandamus 
 directed to the county treasurer of Onondaga county, directing 
 him to cancel a liquor tax certificate issued to the above-named 
 debtor, Julius Lenz, and to pay to said Alexander D. Jenney, as 
 receiver of the property of said Lenz, the pro rata amount of the 
 tax paid for the unexpired term of said certificate. 
 
 The facts sufiflciently appear in the opinion. 
 
 Thomas F. Murphy, for application. 
 
 S. B. Mead, Horace White and J. L. Cheney, opposed. 
 
j^.)4 DionsioNS Relating to 
 
 His.ocK, J. On or about May ".. IS'JO, a judgment was 
 recovered as^ainst Julius Lenz, and thereafter and on or about 
 September 12, 1S!»(;, in supplementary proceedings instituted upon 
 said judgment, Alexander D. Jenney was appointed i-.-(ei\('r of 
 tlie property of said judgment debtor. July 1, 1896, a liquor tax 
 certificate in the ordinary form was issued to the judgment 
 debtor, whicli has ever since continued in full force and effect. 
 September 18, lS!t(;, the receiver obtained possession of said certi- 
 ficate (it being .lisjuited whether by the voluntary act of the 
 debtor or not) and thereafter and before this application in 
 proper form made application to the county treasurer to sur- 
 render said certificate and receive the unexpired pro rata amount 
 thereof, which application was refused. 
 
 Several reasons were urged upon the motion why the applica- 
 tion for the « rit of mandaiims asked for should be denied, but 
 inasmuch as one of them seems more important than the others 
 and to be decisive of the application, consideration will be limited 
 to that. The reas(jn and defense referred to is that arising from 
 and connected with the instruments executed by the judgment 
 debtor to the 1 '.artels Brewing Company and its president' relat- 
 ing to the liquor tax certificate in question before the petitioning 
 receiver was appointed or acquired any rights therein. 
 
 At the time such certificate was taken out the Bartels Brewing 
 Company advanced to the judgment debtor the sum of |208.33, 
 for the purpose of enabling him in jiart to pay the tax on the 
 business of trafficking in liquor and to take out the certificate in 
 question, and Lenz executed and delivered to said company hts 
 promissory note for said amount. At the same time said Lenz 
 executed two instruments, one of them running to said Bartels 
 Brewing Company and the other to the president of said com- 
 pany and his successors. These instruments are quite full and in 
 detail and in substance by them Lenz assigned, transferred and 
 set over to said company, its successors and assigns, all his 
 right, title and interest in and to the liquor tax certificate in 
 question and all moneys to be refunded upon the surrender 
 thereof, as collateral security for the payment of the aliove pi'om- 
 issory note and any and all renewals thereof, and also as security 
 for the ]iayment of all beer, etc., which he might purchase ofl 
 credit from said company, and generally for any other evidences 
 of debt or balances of aciount or other indebtedness which should 
 at any time be due and owing said company from him ; and also 
 
Liquor Tax Law 125 
 
 appoiuted the president of said compaoy his attoruej' irrevoc- 
 able, to sell, assign, transfer and set over to any person, persons 
 or corporation he might choose all his right, title and interest in 
 and to said liqnor tax certificate, and his attorney to surrender 
 at any time the said certificate to the said county treasurer and 
 receipt for the pro rata amount of the tax paid to be refunded 
 for the unexpired term thereof and to discontinue and cease the 
 traffic in liquors under said certificate, and for that purpose to 
 close up the premises where the business was to be carried on, 
 and to apply all moneys refunded in payment of the above-men- 
 tioned note and indebtedness, express power being given to enter 
 upon the premises where said certificate might be held or placed 
 and to take and carry away and deliver or otherwise dispose 
 of the same to carry out the purposes of said attorneyship. 
 
 These instruments were never placed on file as a chattel mort- 
 gage and no act had been done under them with reference to sur- 
 rendering said certificate and securing a repayment thereunder 
 from the county treasurer. Notice of them, however, had been 
 duly given to the county treasurer before the application of th« 
 receiver for surrender and it was undisputed that at that time 
 the indebtedness intended to be secured by them was in excess 
 of the amount due by way of repayment. 
 
 It is urged in behalf of the receiver that these instruments at-e 
 not effective to keep the rights of Lenz under the certificate away 
 from him for the reasons : 
 
 First. That the certificate and rights thereunder were not sub- 
 ject to transfer and assignment such as was attempted; and 
 
 Second. That if they were, the instruments in question 
 amounted to a chattel mortgage and were void by reason of 
 failure to file, etc. 
 
 The conclusions reached are adverse to the receiver and in 
 favor of the assignee and transferee of Lenz upon both of these 
 questions. 
 
 There probably is no question that ordinarily and under the 
 Excise Law as it formerly stood the payment of a license fee for 
 transacting the liquor business would secure to the one paying it 
 a personal right and privilege to transact such business which 
 would not be subject to transfer and assignment, such as is 
 claimed by the brewing company here. The Liquor Tax Law, 
 however, was evidently intended to change this and to give a 
 certificate issued under it and the rights of surrender and repay- 
 
126 Decisions Relating to 
 
 ment under such certificate, the status of property invested with 
 tlie qualities of being assigned, transferred and disposed of. 
 
 By section 25 it is provided that the person holding such cer- 
 tificate may surrender it and have refunded the pro rata amount 
 of the tax paid for the unexpired term. By section 27 it is 
 provided that a person to whom such certificate is issued may 
 sell, assign and transfer it and that the assignee may thereupon 
 carry on the business for which such certificate was issued. By 
 another clause of section 25 it is provided that if a corporation, 
 association or copartnership holding a liquor tax certificate shall 
 be dissolved or a receiver or assignee be appointed therefor, or a 
 receiver or assignee of the property of a pers(m holding a liquor 
 t;ix certificate be a]ii)ointed during the time for which such cer 
 titicaie was granted, or a person holding a liquor tax certificate 
 shall die during the time for which such tax certificate was given, 
 such corporation, association, copartnership or receiver or as- 
 signee, or the administrator or executor of the estate of such 
 person or the person or persons who may succeed to such busi- 
 ness, may surrender such liquor tax certificate or continue to 
 carry on the business thereunder. 
 
 Under these provisions there would not seem to be any doubt 
 that there had been conferred upon and attached to a certificate 
 the quality and power of being transferred and assigned as was 
 done in this case. In fact, one of the provisions above quoted 
 would seem to specifically authorize what has been done in this 
 <ase, for in that clause conferring rights upon "a receiver or 
 assignee of the person holding a liquor tax certificate * * « 
 appointed during the time for which such certificate was 
 granted," it would be a narrow construction, especially in view 
 of the broad and general provisions of the statute, to hold that the 
 word "appointed," referred exclusively to a receiver or assignee 
 named in proceedings hostile to the owner of the certificate and 
 did not as well apply to an assignee appointed bv the holder 
 himself as in this case. It was intended by the parties to make 
 the instruments under consideration irrevocable. They were 
 executed and delivered for value and very likelv are so, but that 
 question is not presented here, for the assignor has expressly ap- 
 peared on this application and by his affidavit not only has not 
 repudiated the transfers but has recognized and ratified them. 
 
 I pass to the second question above suggested, whether these 
 instruments should have been filed as a chattel mortgage to make 
 
Liquor Tax Law 127 
 
 them effective as against the receiver. The receiver simply took 
 and has the rights left to Lenz at the time the receivership 
 was created. No question is presented such as would arise be- 
 tween the Bartels Brewing Company and a subsequent iona fide 
 transferee of Lenz for \'alue and without notice of the prior as- 
 signment. The only contention is that these transfers amounted 
 to a chattel mortgage and that, therefore, they are void under 
 the express statutory provisions relating to the filing of chattel 
 mortgages. It is quite clear, however, both from the reading 
 of the statute itself and from the authorities relating to similar 
 statutes, that it does not apply here and that it was not neces- 
 sary to file the assignment and power of attorney. 
 
 The statute invoked reads as follows: "Every mortgage or 
 conveyance intended to operate as a mortgage of goods and 
 chattels hereafter made which shall not be accompanied by an 
 immediate delivery and be followed by an actual and continued 
 change of possession of the things mortgaged shall be absolutely 
 void, etc." 
 
 It is obvious that this act is not intended to apply to mort 
 gages upon all species of personal property, but that the terms 
 used of "goods and chattels," and "things" include and refer only 
 to personal property which is visible, tangible and movable and 
 not to mere choses in action. 
 
 This contention is amply sustained by the following authoritief^ 
 relating to the meaning of the same and similar statutes and 
 words: Williamson (;. Xew Jersey Southern E. E. Co., 26 N. J. Eq. 
 403 ; Bacon v. Bonham, 27 id. 209 ; Kilbourne v. Fay, 29 Ohio St. 
 264; Marsh v. Woodbury, 1 Mete. 436; Kirkland v. Brune, 31 
 Graft. 126, 131 ; Passaic Mfg. Co. v. Hoffman, 3 Daly, 495, 513 ; 
 Putnam v. Westcott, 19 Johns, 73. 
 
 It has even been held that the filing or refiling of a chattel 
 mortgage is not necessary to secure its validity as against a 
 receiver in supplementary proceedings. Steward v. Cole, 4 N. Y 
 St. Eepr. 428. 
 
 In accordance with the foregoing views and conclusions, the 
 application for a peremptory writ of mandamus is denied, with 
 ten dollars costs. 
 
 Application denied, with ten dollars costs. 
 
]1.'8 Decisions Kelatijm; to 
 
 Supreme Court, Seneca Special Term, January, 1897. Reported. 
 
 19 Misc. 340. 
 
 Matter of the I'etition of S.viirEL H. Halisbury, for an Order 
 Ke\ okiny and Cancelling the Liquor Tax Certificate of Patrick 
 H. Lyons. 
 
 Matter of the Petition of Samuel H. Salisbury^ for an Order 
 Revoking and Cancelling the Liquor Tax <'erlificate of Martha 
 E. Acton. 
 
 Excise — Liquor tax — Exceptions. 
 
 The general exception in section 24 of the Liquor Tax Law of 1896, 
 as to places in which the liquor traffic was carried on at the time of 
 the passage of the act, qualifies both subdivisions of that section, and 
 applies to hotels and places devoted to the liquor traffic which are within 
 one-half mile of a penal institution, protectory. Industrial school, asylum, 
 state hospital or poorhouse, and at least one-half mile from the nearest 
 boundary of an incorporated village or city. 
 
 HrEciAL proceedings brought under section US of the "Liquor 
 Tax La\v" t<i ie\'oke liquor tax certificate No. :5H,TS2, issued by 
 Mavnard T. Corkhill, county treasurer of Seneca county, to Pat- 
 rick H. LvdHs. on the Gth day of November, ISOG ; and the liquor 
 tax certificate No. :!(i,4S0, issued bj^ said county treasurer to 
 Martha E. Acton, on the 17th day of October, 180G. The facts in 
 both cases are the same and are undisputed. The only question 
 in either case arises upon the construction of section 24 of said 
 avt. By stipulation of opposing counsel both cases were argued 
 and submitted as one case and will be so treated in deciding the 
 same. 
 
 Mead & Stranahan, for petitioner. 
 Daniel Moran, for respondents. 
 
 Werner, J. Each of said respondents was, at tlie time of the 
 passage of the law known as the "Liquor Tax Law," lawfully en- 
 gaged in conducting a hotel in the town of Romulus, Seneca 
 county, N. Y., within one-half mile of "Willard State Hospital," 
 which is an institution owned by the public and in which the 
 State of New York keeps and cares for its dependent insane; and 
 neither of said hotels is within an incorporated village or city, 
 
Liquor Tax Law 129 
 
 or within one-half mile of the nearest boundary of any incor- 
 poi'ated village or city. The application for the revocation or 
 said certificates is made on the ground that material statements 
 in the applications for the same were false, and on the further 
 ground that the holders thereof are not legally entitled thereto. 
 The statements in said applications which are alleged to be false 
 tire as follows: 
 
 "10. May the applicant or applicants lawfully carry on sucli 
 traffic on said premises under such subdivision?" vSubd. 1, §11. 
 "Yes." 
 
 "11. Is the applicant or either of them within any of the pro- 
 hibitions of said act?" "No." 
 
 The alleged falsity of these statements, which are the same in 
 both applications, is predicated upon the language of said section 
 24, which we are asked to construe, and which reads as fol- 
 lows : 
 
 " § 21. Place in which traffic in liquor shall not be permitted. — 
 Traffic in liquor shall not be permitted: 
 
 "1. In any building owned by the public, or upon any premises 
 established as a penal institution, protectory, industrial school, 
 asylum, state hospital or poorliouse, and if such premises be 
 situated in a town and outside the limits of an incorporated 
 village or city, not within one-half mile of the premises so oc- 
 cupied, provided there be such distance of one-half mile between 
 such premises and the nearest boundary line of such village or 
 city; nor 
 
 "2. Under the provisions of subdivision 1 of section 11 of this act, 
 in any building, yard, booth or other pla.ce which shall be on the 
 same street or avenue and within two hundred feet of a building 
 occupied exclusively as a church or a schoolhouse; the measure 
 ments to be taken from the center of the nearest entrance of the 
 building used for such church or school to the center of the 
 nearest entrance of the place in which such liquor traffic is de- 
 sired to be carried on; provided, however, that this prohibitior. 
 shall not apply to a place which is occupied for a hotel, nor to 
 a place in which such traffic in liquors is actually lawfully car 
 ried on when this act takes effect, nor to a place which at such 
 date is occupied, or in process of construction, by a corporation 
 or association which traffics in liquors solely with the members 
 thereof, nor to a place within such limit to which a corporation 
 or association trafficking in liquors solely with the members 
 9 
 
130 Decisions Relating to 
 
 tliereol:' when this act takes cirect may remove; provided, however, 
 such place to which such corporation or association may so re 
 move shall be located within two hundred feet of the place in 
 which such corporation or association so traffics in liquors when 
 this act takes effect." 
 
 In the effort to ascertain the legislative intent in the passage -A 
 the "Liquor Tax Law," certain well-settled rules of statutory con 
 struction, which are of general application, must be invoked. 
 The first of these is, that the intention is to be deduced from a 
 view of the whole statute, and that intention, when ascertained, 
 will always prevail over the literal sense of the terms. 3Iattei 
 of Brooklyn Bridge, T2 N. Y. 52!). Or, as the rule is stated in 
 Smith r. Peojile, 47 X. Y. '.MMK "In the construction of statutes, 
 effect must be given to the intent of the legislature whenevei 
 it can be discerneil, though such construction seems contrary t<. 
 the letter of the statute" ; and again, in Hayden v. Pierce, 144 X. Y 
 51(1, •■T^auguage, however strong, must yield to what appears 
 to be the intention, and that is to be found, not in the words ol 
 a iiarticular section alone, but by comparing it with other parts 
 or provisions of the general scheme of which it is a part." 
 
 Apjilyiug these rules of statutory construction to the case be- 
 fore us, let us briefly examine the purpose and scope of the 
 statute as a whole, and also the provisions of certain separate 
 sections thereof, before devoting our attention to the language 
 of section 24. The evident pnrjjose of the legislature, as dis 
 cldS'Ml by tiie conlext (if the whole act, was to completely change 
 the system under which tlie liquor traffic had previously beei. 
 cai'ned on, without invading or abridging the vested rights ol 
 persons lawfully engaged in said traffic at the time of the change 
 in the law. Whether those lawfully engaged in said liquoi 
 traffic at that time had in fact any vested rights in the premises 
 it is not necessary now to determine. It is perfectly clear that 
 the legislature, in the sweejiing changes created by its enactment 
 of chapter 112 of the Laws of 1S!)6, sought to minimize the hard 
 ships incident to this revolution in the law, by certain well-defined 
 exceptions to the stringent provisions of the statute in favor ol 
 those laAvfully engaged in the liquor traffic at the time of the 
 passage of said act. These exceptions evince a disposition on the 
 part of the legislature to deal as equitably as the enforcement ot 
 the new law would permit with those who had lawfully acquired 
 rights or privileges under the old law. 
 
LiQUOE Tax Law 131 
 
 Under section 1 of said act, licenses lawfully granted uuuei 
 previous statutes which were valid on March 23, 1896, when this 
 act took ettect, were continued in force until June 30, 1896. Sec- 
 tion 17, subdis'ision 6, of said act requires the written consent of 
 the owner of the premises in which the trafiic in liquor is to be 
 carried on to be filed simultaneously with the application for 
 the tax certificate, "except in cases where such traftic in liquors 
 was actually lawfully carried on in said premises so described in 
 said statement at the time of the passage of this act, in which 
 case such consent shall not be required." Subdivision 8 of the 
 same section makes it necessary to obtain the consent of the 
 owners of buildings occupied exclusively as dwellings which are 
 within two hundred feet of the premises in which the traffic vn 
 liquors is to be carried on, but "such consent shall not be re- 
 quired in cases where such traffic in liquors is actually lawfully 
 carried on in said premises so described in said statement when 
 this act takes effect." 
 
 The language of the second part or subdivision of said section 
 24 concedediy excepts from its operation hotels and places in 
 which the traffic in liquors was actually lawfully carried on when 
 this act took effect, which were within two hundred feet >f 
 churches or schoolhouses. If, as appears from the language of 
 these sections just quoted, it was the purpose of the legij-^latnre 
 to ameliorate, so far as possible, the condition of those engaged 
 in the liquor traffic at the time of the passage of this act, by 
 relieving them from the hardships and apparent inequities of the 
 sudden and sweeping changes in the law, it is quite impossible to 
 discern, either in the language of the sections just quoted or in 
 the general context of the act, any intent to discriminate against 
 hotel-keepers or dealers in liquors whose places of business were 
 within one-half mile of any of the institutions enumerated in 
 subdivision 1 of section 24. It is difficult to understand upon 
 what theory the legislative intent to effect such a result could 
 be reconciled with the saving clauses in favor of hotels, saloons 
 and clubs, which, at the time of the passage of this act, were in 
 operation within two hundred feet of schoolhouses or churches. 
 If there were good reasons for the reservation of privileges to 
 those who were, at the time this law went into effect, actually 
 lawfully engaged in the liquor traffic within two hundred feet 
 of the schoolhouse or church, there are quite as cogent reasons 
 for similar reservations in favor of those who, at the'same time, 
 
i;!ii DECISIONS Relating to 
 
 were actually engaged in .said busiuesw within one-hair mile o£ 
 any uf the waid enuiiicrated public institutions and at least ono- 
 half mile distant from the nearest boundary of an )ii((iri)orate<l 
 village or city. 
 
 We could, if it were necessary, readily suggest seveivil oljvious 
 arguments in favor ol discrimination against places devoted to 
 the liquor traffic within two hundred feet of a church or school- 
 house which could not, with the same urgency or logir, be ap- 
 plied to such places located within said one-half mile limit. 
 
 But this feature ol' the discussion is so transparent that it 
 seems to us a work of supererogation to (h\ell longer upon ir. 
 We think it is clearly consonant \\ith the spirit of the act to 
 liojd that llie same reservation which is conceded to apply to 
 Jiotels and places devoted to the li(|U(ir traffic which were within 
 two hundred feet of a schoolhouse or church at the time of the 
 ])assage of this act, api)lies to hotc^ls and places de\'o1ed to the 
 liquor trallic which were within t)ne-half mile of the institutions 
 enumerated in subdivision 1 of said section 124 and at least one- 
 half mile from the neart'st boundary of an incorporated village 
 or citj'. 
 
 ir it were iie<essary, it would be the duty of the court, within 
 tlie rules of statutory construction above enunciated. To read into 
 said section 24 such an express proviso in favor of hotels and 
 places devoted to the liquor trallic within said one-half mile limit 
 in which the liquor li'nillc was actually lawfully carried on at the 
 time of the juissage of this act, as 1o bring the same into harmonv 
 with the evident spirit and ]inr]Mis(> of the whole act and to make 
 effectual the palpable intent of the legislature. P.ut the court 
 does not seem to be driven to this extremity. The plain inter- 
 pretation of said section 1'4, Avhen read as a whole and fairly con- 
 strued, is that there is but one prolvibition, which is contained in 
 a single, inde])endent, ])rincii»al clause, to wit: "Trallic in liquors 
 shall not be permitted." This arbitrary prohibition is Followe.i 
 by an enumeration of the places to which it applies, to wit: The 
 institutions designated in the first dependent or subsidiary sen- 
 tence; and the places named in the sec<uul dependent or subor- 
 dinate clause. These two latter clauses are not dependent upon 
 each other, but have a common dependence upon the first or 
 princi])al sentence. Then follows the proviso which is not in 
 terms limited to the places named in the second dependent sen- 
 tence and which, so far as it applies to this case, reads as follows: 
 
Liquor Tax Law 133 
 
 "Provided, however, that this prohibition shall not ajjply to a 
 place which is occupied for a hotel, nor to a place in Avhich 
 such traffic in liquors is actually lawfully carried on when this 
 act takes effect." The portion of the sentence which follows that 
 just quoted refers entirely to clubs and is as independent of and 
 unconnected with the general proviso sought to be invoked in 
 protection of the respondent's rights herein, as though it were in 
 fact an entirely separate sentence in a distinct paragraph. 
 
 Although the punctuation and division of sentences will ordi 
 narily be made to yield to the obvious spirit of a statute, there 
 is, in the present case, apparently no necessity for the application 
 of this rule. With much greater care than is ordinarily evinced 
 in the composition of laws, the legislature seems to have so co- 
 ordinated the punctuation of the letter with the sjiiiit of the 
 statute as to remove all doubts concerning its construction, when 
 tested by the rules of correct rhetoric. The division of the de- 
 pendent clauses from each other by semicolons and their separa 
 tion from the clause from which they both depend by a comma, 
 is in itself an indication of the legislative intent to treat the pro- 
 viso above referred to as applicable to the subject-matter of each 
 dependent clause. If the legislature had intended to limit said 
 proviso to the second dependent clause, it could certainly have 
 more clearly expressed a purpose so plainly antagonistic to the 
 spirit of the whole statute. But even if there were doubt as to 
 the technical correctness of the composition of this statute the 
 court would still be at liberty, and indeed called upon, in con- 
 struing the same, to adhere to the plain, common-sense inter- 
 pretation of the words in the effort to ascertain the true spirit 
 and meaning thereof, and when that is done the refined, technical 
 rules of grammar and rhetoric must yield if justice requires it. 
 
 The statements in said applications, which are challenged as 
 false, were in fact true under our construction of this statute, 
 and these proceedings must, therefore, be dismissed, with |20 
 costs in favor of each respondent. 
 
 Ordered accordingly. 
 
1;J4 Decisions Relating to 
 
 County Court, Oneida County, February, 1897. Reported. 19 Misc. 458. 
 
 The People v. Alexandf:r Schmidt and Eva Schmidt. 
 
 Indictment — Violation of Excise Law. 
 
 An indictment which charges that on a specified day two persons named 
 "wilfully and maliciously, wrongfully and unlawfully did sell and cause 
 to be sold distilled, etc., liquors, ale, beer and wine in quantities less than 
 five gallons at a time by retail and to be drank on the premises, to Y., Z. 
 and to divers other persons whose names are to the grand jury unknown, 
 without having paid excise taxes and without having a liquor tax certifi- 
 cate therefor, and not being authorized thereto by law, charges a joint 
 sale to the persons named and the persons unknown by the defendants 
 jointly, and is not demurrable as joining two crimes. 
 
 Kb.murrer to indictment. 
 
 The above-named defendants are indicted for violating the 
 Liquor Tax Law. The indictment charges that on the 29th day 
 of July, ISDG, at the city of Utica, N. Y., the said Alexander 
 Schmidt and Eva Schmidt wilfully and maliciously, wrongfully 
 and unlawfully did sell and cause to be sold distilled, rectified, 
 spirituous, fermented nnd malt liquors, ale, beer and wine in 
 quanlities less than five gallons at a time by retail and to be 
 drank on the premises, to William Yates, Hannah Calahan and to 
 divers other jjersous wliose names are to the grand jury unknown, 
 and then and there did deliver and cause to be delivered in 
 pursuance of such sale to the said William Yates, Hannah 
 Calahan and to said divers other persons, etc., said liquors, wines, 
 ale and beer, to wit, one gill of wine, one gill of brandy, one gill of 
 rum, one gill of gin, one gill of whisky, one gill of cordial, one 
 gill of bitters, one gill of ale, one gill of porter, one gill of beer, 
 one gill of lager beer and one gill of a certain strong spirituous 
 and fermented liquor to the grand jury aforesaid unknown, with- 
 out having paid excise taxes upon the business of trafficking in 
 liquors and without h.nving a liquor tax certificate therefor and 
 not being authorized thereto by law. 
 
 The defendants demurred to snid indictment upon the ground 
 that the indictment charges one crime against defendant 
 Alexander S.hmidt and a separate and distinct crime a-ainst 
 Eva Schmidt, and that the crimes being distinct and separate can- 
 not be united in one indictment. 
 
Liquor Tax Law 135 
 
 Also upon the further ground that more than one crime is 
 charged in the indictment. 
 
 George S. Klock, district attorney, for People. 
 
 James Coupe, for defendants. 
 
 DuNMOEB, J. Section 33 of the Liquor Tax Law provides that 
 any clerk, agent, employee or servant shall be equally liable as 
 principals for any violation of the provisions of that act. 
 
 Defendants contend that one of these defendants was acting 
 as clerk or agent for the other, or else defendants must have been 
 copartners, and that any sale made by one was a distinct and 
 separate crime by that one and that the person so offending must 
 be proceeded against separately. That doubtless would be true 
 providing defendants' premises were correct, but this indictment 
 alleges that defendants jointly committed the offense. 
 
 In disposing of the demurrer we must assume that allegation 
 to be true. If defendants jointly committed the offense as 
 alleged they are properly joined in the indictment. 
 
 The remaining ground of demurrer is, as defendants contend, 
 that the indictment alleges more than one sale and delivery, 
 to wit : One to William Yates, one to Hannah Calahan and one or 
 more to the other persons who are unknown. 
 
 If the indictment alleged separate sales to the persons named 
 the defendants' objection would be good, but the fact is that the 
 indictment charges a joint sale to the persons named and the 
 persons unknown. 
 
 That this objection is not good as to an indictment in the form 
 of the one at bar has been settled in this State for many years. 
 In People v. Adams, 17 Wend. 475, the indictment charged that 
 the defendant, on June 1st, 1836, and on divets other days and 
 times, sold by retail to divers citizens of this State and to divers 
 persons to the jurors unknown, etc. It was held that only one 
 sale was alleged and that consequently the objection that more 
 than one crime was alleged was not iv'ell taken. Chief Justice 
 Nelson, in his opinion, says: "Upon our view of the time when 
 the offense is laid in the iTidictraent, that is upon the day given, 
 but one sale by retail i"* to be deemed charged in the count, the 
 three gills of brandy, three gills of rum, etc., are to be viewed 
 as having been sold at one and the same time, and as constituting 
 but one transaction. It is a description of various sorts of liquors. 
 
136 Decisions Relating to 
 
 with a view to avoid the difficulty of a possible misdeHcription of 
 the article sold." 
 
 That case was followed and the same rule reasserted in Osgood 
 V. People, 39 N. Y. 449. 
 
 The demurrer is overruled. . 
 
 Ordered accordingly. 
 
 Supreme Court, Kings Special Term. February, 1897. Unreported. 
 
 In the Matter of the Application of Ejiily G. Smith to revoke 
 the Liquor Tax Certificate of Kolaxd P. :\Ieiirill. 
 
 Dickey, J. S. ('. From a careful reading of the testimony 
 taken before the icferee, I am satisfied that material statement^, 
 in the application of the holder of the certifirate were false, 
 and that lie was not entitled to a cerlificate. His statement that 
 only one dwelling was within two hundred feet of his saloon, 
 and his attaching the consent of Philiji E. Schenck as the owner 
 of that dwelling, was a false statement. That dwelling was 
 not within two hinidicd feet, but the dwelling of this petitioner 
 was within that distance. 
 
 While his statement was true as to one dwelling being within 
 the distance, he has nut the ronsent of that owner, so he was not 
 entitled to a certificate. There are plenty of places where liquor 
 is now sold, without starting new ])laces within two hundred feet 
 of property used exclusively for dwellings, and it will do no 
 harm to have it authoritatively understood that certificates will 
 be revoked by courts unless the law is strictly complied with. 
 
 This certificate must be re\oked and cancelled, with |;25.00 
 costs and disbursements against him. 
 
 Supreme Court, Kings Special Term, February 15, 1897. Unreported. 
 
 People ex rel. Charles Rbdsse r. Harry W. ]\Iichell for a 
 "^A'rit of Mandamus. 
 
 Dickey, J. This is an application for a writ of mandamus to 
 compel the S|)ecial Deputy Commissioner of Excise of Kings 
 county to issue a transfer of an excise license from Herman 
 Heincke to Charles Reusse. It is my opinion that the exception 
 in subdivision 6 of section 17 of the Raines Law applies only to 
 
Liquor Tax Law 137 
 
 such tenants of liquor stores, who were such at the time of the 
 passage of the act. The intention of the lawmakers was to save 
 them the necessity of getting the consent of the landlord, who 
 had already leased them the premises to carry on the liquor 
 business; but when a stranger to the owner applies for leave 
 to carry on the business, I am convinced the law intended in 
 such cases that the consent of the landlord should first be 
 obtained, for while the owner of the property might consent that 
 one man well known to him might carry on the liquor business in 
 his building, it might well be that he would seriously object to 
 another doing so. The manner of keeping a liquor store depends 
 largely on the keeper. The law is meant to be restrictive in a 
 measure, and the requirement that owners of buildings should 
 consent before business may be carried on is a proper restriction. 
 
 Motion denied. 
 
 First Appellate Department, February, 1897. Reported. 14 App. Div. 461. 
 
 Max Augnee, Appellant, v. The Mayor, Aldermen and Common- 
 alty OF THE City of New York, Respondent. 
 
 An action to recover from' a city moneys paid to it for a license — After 
 revocation it is returnable to the licensee, to the extent of the 
 unexpired term^ — Implied contract to return the money — Judgment 
 may be taken without application to the court. 
 
 A complaint, based upon, section 4 of chapter 112 of the Laws of 189C, 
 known as the Liquor Tax Law, alleged that the plaintiff, on or about the 
 21st day of October, 1895, applied to the board of excise of the city of 
 New York for a liquor license; that the board issued to him, upon his 
 payment of $200, a license which by its terms expired in one year; "that 
 pursuant to the provisions of the Liquor Tax Law this plaintiff is entitled 
 to receive from the defendant the sum of sixty-one dollars, which is a 
 proportionate share of the license fee paid as aforesaid for the unexpired 
 term which the said license had to run after the 30th day of June, 1896" 
 (the date when it was terminated by the Liquor Tax Law) , and demanded 
 judgment against the city for the sum of sixty-one dollars and interest. 
 
 Held, that the complaint stated a cause of action upon an implied 
 contract, based upon the obligation of the city of New York to repay to 
 the plaintiff money which it had received, but which it was not justly 
 entitled to retain. 
 
 That the action was one which came within the provisions of section 
 420 of the Code of Civil Procedure, and that judgment might be taken by 
 the plaintiff without application to the court. 
 
 Barrett and Rumsey, JJ., dissented. 
 
138 Decisions Relating to 
 
 Appeal by the plaintiff, Max Augner, from an order of the 
 Supreme Court, made at the New York Special Term and entered 
 in the office of the clerk of the county of New York on the 8th 
 day of December, 18i)0, denying his motion for judgment in the 
 action. 
 
 The action was brought to recover from the defendant the sum 
 of |61, the proportionate part of a license fee of $200, for the 
 period from June 30, 1896, to October 21, 1896, for which a right 
 of action was given to the plaintiff by section 4 of the Liquor Tax 
 Law. being cluipter 112 of the Laws of 1896. 
 
 Charles Goldzier, for the appellant. 
 
 George O'Reilly, for the respondent. 
 
 Inc'raham, J.: We have here to determine whether the com- 
 plaint in this action sets forth a cause of action which consists of 
 "an express or implied contract to pay money received or dis- 
 bursed, or the value of projierty delivered, or of services rendered 
 by, to or for the use of, the defendant or a third person, and 
 thereupon demands judgment for a sum of money only." (Code 
 Civ. Proc. §420.) It is difficult to understand what was meant 
 by the language here quoted. The meaning would be clear if the 
 words "received or disbursed" were omitted. Reading the whole 
 section together, however, it would seem as if it was intended to 
 allow a judgment to be taken without application to the court 
 in a case where the action was either for the breach of an express 
 contract to pay, absolutely or upon a contingency, a sum or sums 
 of money, fixed by the terms of the contract, or capable of being 
 ascertained therefrom, by comimtation (mly, or an express or 
 implied conti'act to pay money or the value of property 
 delivered, or of services rendered, where the complaint demands 
 judgment for a sum of money only. In such a case the complaint 
 setting forth the cause of action must set forth the facts which 
 show either an express contract, or facts from which the law 
 raises the implication of a contract to pay a definite sum of 
 money. There the defendant has notice of the foundation of the 
 alleged obligation, and the amount of money for which the 
 plaintiff asks judgment. By a failure to answer such a cause of 
 action the defendant in substance consents to a judgment for the 
 sum of money demanded, and in such a case no application to 
 
Liquor Tax Law 139 
 
 the court is necessary, for the amount of the judgment can not 
 exceed the amount specifically demanded in the complaint. Does 
 the complaint in this action allege a cause of action based upon 
 an express or implied contract to pay money? If it does, I think 
 the case comes within the section of the Code before cited. The 
 complaint alleges that on or about the 21st day of October, 1895, 
 the plaintiff applied to the board of excise of the city of New 
 York for a license permitting him to carry on business upon the 
 premises No. 53 First street, and that upon payment by him to 
 the board of excise of the sum of |200 as a license fee, the said 
 license was duly issued to this plaintiff, which, by its terms, 
 expired on the 20th day of October, 1896; tliat pursuant to the 
 provisions of the Liquor Tax Law, this plaintiff is entitled to 
 receive from the defendant the sum of |61 which is 
 a proportionate share of the license fee paid as aforesaid for the 
 unexpired term which the said license had to run after the 30th 
 day of June, 1896, and a judgment was demanded against the 
 city of New York for the sum of sixty-one dollars with interest. 
 
 By section 1 of the Liquor Tax Law (Chap. 112, Laws of 1896) 
 it is provided that "When a license is terminated on the thirtieth 
 day of June, eighteen hundred and ninety-six, as above provided, 
 the holder of such license shall be entitled to receive and recover 
 from the town or city in which such license was granted, such pro- 
 portion of the whole license fee paid therefor, as the remainder of 
 the time for which such license would otherwise have run, shall 
 bear to the whole period for which it wa^s granted, and the same 
 shall be paid by such town or city on demand." The action, there- 
 fore, is brought to recover under this provision of the statute a pro- 
 portionate amount of the sum of money which the plaintiff had 
 paid for a license which had been abrogated by law on the 
 30th day of June, 1896. In other words, a license having been 
 granted by the State to sell liquor for a certain period, and the 
 State having abrogated that license before the period had expired, 
 recognizing the justice of the plaintiff's claim to have refunded 
 to him the proportionate amount of the license fee paid, where 
 the privilege accorded by the license had been withdrawn, places 
 upon the town or city in which such license was granted the 
 obligation to repay the amount which the plaintiff had paid for 
 his license, but for which he had received no consideration, the 
 license having been abrogated. Is this a cause of action upon an 
 implied contract to pay money received? It seems to me that 
 
140 Decisions Relating to 
 
 there is no doubt but that there would be such an implied contract 
 if the complaint had alleged that the defendant had received for 
 its own use this money so paid by the plaintiff for the license. It 
 here appears that by law the board of excise is required to deposit 
 with, and pay over to, the chamberlain of the city of New York 
 all money received for licenses within thirty days after it is 
 received (see chap. 145, Laws of 1879, amending §2, chap. 175, 
 Laws of 1S70), and we can assume that these public officers have 
 done their duty and obeyed the law. 
 
 In the case of The People ex lel. Dusenbury v. Speir (77 X. Y. 
 150), in defining what is an implied contract, it is said: "There is 
 a class of cases where the law prescribes the rights and liabilities 
 of persons who have not in reality entered into any contract at all 
 with one another, but between whom circumstances have arisen 
 which make it just that one should have a right and the other 
 shonld be subject to a. liability similar to the i:ights and liabilities 
 in certain cases of express contract." As was said in iloses v. 
 Macferlan (2 Burr. 1008), "If the defendant be under an 
 oUigaiion, from the ties of naiural justice, to refund, the law 
 impVicfi a debt and aires this aciion founded in the equity of the 
 plaintiff's case as it u-cre upon a contract." In this case we 
 have the payment by the ])laintiff of the license fee; the duty 
 of the board to jiay that money, within thirty days after it was 
 received, to tlie chamberlain; and a provision of the statute 
 which requires that a proportion of that money be paid to the 
 plaintiff by the city of New York. Upon that obligation thus 
 created by statute an action is In-nnght. It seems to me that this 
 is clearly an action upon an implied contract; a contract based 
 upon the obligation of the ,ity of Ne^^• York to repav to the plain- 
 tiff money that it had received but which it was not justlv eutitleil 
 to retain, because the consideration for which it had been paid 
 VIZ., the right from the 30th of June until October 20 1806 to 
 carry on business under the license granted had been taken away 
 by the legislature. There is nothing here that imposes upon th-- 
 city of New York the payment of any sum of money as a penalty 
 The act Itself does not create tlu^ liability, but directs the muni- 
 cipal corporation to dischai'se the obligation wliich in justice 
 existed against it, to repay to the plaintiff the money that it 
 held of his and for which he had received no consideration. The 
 mere fact that the complaint does not allege that the money was 
 actually received by the defendant does not prevent this obli- 
 
Liquor Tax Law 141 
 
 gation to do what is just, imposed on the defendant by the 
 legislature, from being an obligation in the nature of an implied 
 contract. The legislature, I think, undoubtedly assumed, in 
 making the city liable, as we are, I think, entitled to assume upon 
 this appeal, that these boards of excise, who were public officers, 
 had performed the duty required of them by law, and have paid 
 the money to the chamberlain, who held it as the money of the 
 city, to be applied by the city according to law. It is clear 
 that this ruling will carry out the intent of this section of the 
 Code, the sole object of this application being to entitle the 
 plaintiff in those suits to obtain a greater amount of costs against 
 the city of New York than they would be entitled to if the action 
 was one which would have come under the section of the Code 
 above cited; and as the action is Avithin both the letter and spirit 
 of this section, and as the city objects to the application, not to 
 prevent the plaintiff from obtaining a judgment which it can 
 obtain, but simply to prevent the defendant's recovering in all 
 those suits costs against the city on the higher scale provided 
 for in actions which require an application to the c<mrt for 
 judgment, I do not see why a strained construction should be 
 given to this section not necessary to fully -protect the city, and 
 which v^'Ould only result in largely increasing the liability of 
 the city for costs. 
 
 I think the order appealed from should be affirmed, with ten 
 dollars costs and disbursements. 
 
 Van Brunt, P. J., and O'Brien, J., concurred; Barrett and 
 EuiisEY, JJ., dissented. 
 
 Barrett, J. (dissenting) : 
 
 This action is upon what has been aptly termed a quasi con- 
 tract. It is not upon a genuine contract, that, is, an agree- 
 ment, in fact, between plaintiff and defendant, either express or 
 implied. It is simply upon a statutory liability, which is suf- 
 ficient to sustain an action analogous to what was formerly 
 called assumpsit. "That feature," as Judge Allen said in 
 McCoun v. 'N. T. C & H. R. R- R. Co. (50 N. Y. 180), "does not 
 suppose a contract, but simply a promise e.v parte." In th 
 classification of actions this is undoubtedly an action e.v 
 tractu and not ex delicto. But that does not settle the present 
 question, which is, whether an action upon an obligation arising 
 
 H.1 
 
 con- 
 
IJi; J)io(_'isiijNS Relatinij to 
 
 solely (,(■ lc(jc — tliougli proceeding in form f.r coniraciu is 
 coutempluU'd by seetion 4:i(( of I he Ojde of (3ivil I'l'ocedure. 
 There are many actions upon contract — actual even — which are 
 not within this section. In lact the contracts, whether express 
 or implied, which come within it are strictly limited. They are, 
 ftrst, an express conti'act to pay money iixed by its terms, or 
 capable of being ascertained therefrom l>y computation only. 
 That, certainly, is not this case. SccoinI, an express or iinpUrd 
 contract to pay money received or disbursed, or the value of 
 propert.\- delivered, or of services rendered by, to or for the use 
 of the defendant or a third person. This case cannot come within 
 the two latter alternatives. It has nothiTig to do with property 
 delivered or services rendered. The cliiim is, that it comes within 
 the earlier si)eciflcation, namely, "to pay money received or dis- 
 bursed." As there is no chai'ge in the complaint of the disburse- 
 ment of money, the point is reduced to its receipt. r»oes the com- 
 plaint, then, aver the defendiint's bi'eaeh of an "implied contract 
 to pay money received" by it? There is no other possible phase 
 of the section which bears upon the question presented. The 
 complaint certainly does not aver even an implied contract to 
 pay money received "to, or for the use of'' the defendant or a 
 third person. It either alleges money received ••hi/' the de- 
 fendant, or it alleges nothing which is within the section. What, 
 then, is the feature of the c(mtract to A^liich this language refers? 
 Clearly, money received by the defendant to lite ».yc of the 
 plaint iff, that is, money which, upon its receipt by the defendant, 
 becomes due and payable to the plaintiff, and so becomes due and 
 payable under some contract between them, either exjtress or im- 
 plied. This means a contract lietween the parties, an actual 
 contract in fact, whether the promise to pay be direct or in- 
 ferential. "An implied promise," to again quote Judge Ali.en 
 in the case cited supra, "or contract is but an exi)ress promise- 
 proved by circumstantial evidence." It is cle.ar that the codifier 
 here was not dealing with legal fictions invented to sustain 
 remedies e:r roiilraciu upon liabilities which rest upon naught 
 save statutory mandate, pure and simple. The intention was to 
 limit those cases where a plaintiff might enter his .judgment with 
 out the revisory consideration of the court to breaches of the 
 few simple and actual contracts cnrefully enumerated in the 
 section. In other Code instances we find no such limitation. 
 For example, a warrant of attachment may issue in an action 
 
Liquor Tax Law 143 
 
 for the breach of any contract whatever, express or implied, 
 except a contract to marry. (Code, § 635.) But the construc- 
 tion given to even this unlimited provision favors the view that 
 the contract, express or implied, referred to in this latter section 
 is a contract founded upon consent, that is, upon the actual meet- 
 ing of minds; in other words, a contract between the parties in 
 the ordinary and proper sense of this term, and not a mere 
 legal fiction which forces a party to do something which he has 
 never agreed to do. Thus, in Remiiujtoii Paper Goinpaiuj v. 
 0' Dougherty (96 N. Y. (iiJG, affg. 32 Hun, 2.55) it was held that 
 an attachment under section 635 would not lie in an action 
 brought under section 3247 of the Code to recover the costs of 
 a former action which was prosecuted by the defendant in the 
 name of a third person for her benefit. The presiding justice 
 (Smith) at General Term said that "the defendant has made no 
 contract with the plaintiff or its assignors; she is liable onl,\ 
 hy the provisions of the statute." A different view was stibso 
 quently taken by the Court of Appeals of an action upon o 
 judgment [The Gutta Percha ct Rubber 31 fg. Company v. Mayor. 
 108 N. Y. 276), thus making a distinction — the point of which 
 it is difficult to perceive — between the fiction of a promise 
 founded upon a legislative mandate and that founded upon a 
 judicial mandate. The same court had previously held that a 
 judgment was not a contract within the meaning of an act. re- 
 ducing the rate of interest, but reserving from its operation "any 
 contract or obligation" made prior to its passage. [O'Brien v. 
 Young, 95 N. Y. 428.) It had also held in The People ex rel. 
 Dusenlury v. Speir [11 N. Y. 144) that the phrase "contract, 
 express or implied," as used in the old Non-imprisonment Act 
 (Laws of 1831, chap. 300), referred to a contract resulting from 
 the voluntary arrangement of the parties, and not one implied 
 by law for the purpose of giving a remedy for the wrong. Judge 
 Danfoeth said in that case that the implied contract referred to 
 in the statute is one where "the intention of the parties, if noi 
 expressed in words, may be gathered from their acts and from 
 surrounding circumstances"; and, whether express or thus im 
 plied, "must be the result of the free and hona -fide exercise of the 
 will producing the 'aggregatio mcntium,' the joining together of 
 two minds, essential to a contract at common law." The learned 
 judge added": "There is a class of cases where the law prescribtis 
 the rights and liabilities of persons who have not in reality 
 
144 l)i:('isi(j.\s Relatixg to 
 
 enli'ied into any coulract at all with one another, but between 
 whom circumstances have ari.seu which make it just that one 
 should have a right, and the other should be subject to a liability, 
 similar to the rights and liabilities in certain cases ot express 
 contract. * * * Tberetorc, these tacts are called quu>il con- 
 tracts, because, without being contracts, they produce (obligations 
 in tlie same manner as actual conti-acts." The cdnclusioii there 
 was that the statute did not embrace obligations of t\w latter 
 class. To the like eU'ect are Louisiana v. Mayor of New Orleans 
 (109 U. S. l'S.")j and Steamship Vompunij v. JoJiffe (2 Wall. 4.50). 
 The same point was directly invulved in Inhabitants of Milford v. 
 Comnionn-eallh (144 Mass. 04). The Superior (.'(.nirt was given 
 jurisdiction by statute "ot all claims against the Commonwealth 
 which are tounded in contract tor the payment of monej',"' and 
 it was there held that this jurisdiction did not extend to an 
 obligation imposed by law upon the Commonwealth to reimburse 
 the expense incurred by a Xawu in the sn]i|)ort of a State pauper. 
 FiELii, .]., observed that "a contract is sometimes said to be 
 implied when there is no intention to create a contract, and no 
 agreement of parties, but the law has im])osed an obligation 
 which is enforced as it it wei'c an obligation arising e.r contractu. 
 In such a case there is not a contract, and the obligation arises 
 ex lei/e." 
 
 • In England these (jitasi contracts are no longer confused with 
 "im]ilied contracts." Lord Justice Cotton, in Rhodes v. Rhodes 
 (44 Ch. Div. 04) , referring to the nature of the obligation incurred 
 by a lunatic for necessaries supi)lied, declared that "the term 
 'implied contract' is a most unfortunate expression, because there 
 cannot be a contract by a lunatic." " It is asked," observed that 
 learned judge, "can there be an imiilied contract by a person who 
 cannot himself contract in express terms? The answer is that 
 what the law implies on the part of such a person is an obligation, 
 which has been improperly termed a contract, to repay monev 
 spent in supplying necessaries." (See also, Trainor v. Trunihull. 
 141 Mass. 527; Cunningham v. Reanlon. OS id. 538; Read v. 
 Leriard. 6 Exch. 636.) 
 
 Looking at the present complaint in the light of reason and 
 authority, as applicable to the statute under consideration, what 
 do we find? An allegation that the plaintiff paid $200 to the 
 former board of excise of the city of New York for a license to 
 sell spirituous liquors for one year, and that, "pursuant to tho 
 
Liquor Tax Law 145 
 
 provisions of the Liquor Tax La,w, this plaintitl: is entitled to 
 receive from the defendant the sum of sixty-one 00-100 dollars, 
 which is a proportionate share of the license fee paid as aforesaid 
 for the unexpired term which the said license had to run after the 
 30th day of June, 1896.'' There is no allegation that the city 
 received the original fee, though that may be inferred, because of 
 the presumption that public officers have done their duty. The 
 board, in granting the license, "were not exercising a jurisdiction 
 as agents of the corporation." [The People ex- rel. JJiiisfeld v. 
 Aliii-ray, ll'J X. Y. 37.5, 370.) But there certainly is no allegation, 
 either direct or indirect, that the city rcceiced the Ikrnse fee to 
 the use of the plaintiff. It was paid by the plaintiff to the board, 
 and, if received bj' the defendant, was so received for 
 public purposes. Under the law the city was bound to pay 
 out of these excise moneys to the Home for Fallen and Friendles:-; 
 Girls certain specified sums for the support of its charity. 
 (Consol. Act, § 208.) The board of estimate and apportionment 
 was also authorized to appropriate all excise moneys to certain 
 benevolent and charitable institutions. (Consol. Act, § 210.) Thus 
 the Legislature has imposed upon the municipality the burden 
 of refunding to licensees, whose licenses have been abridged, 
 moneys which it originally received and held for charitable pur- 
 poses; and this, too, whether or not these moneys had already 
 been applied to such purposes. Thus it is apparent that the com 
 plaint nowhere alleges a breach of contract, express or implied, 
 "to pay money received * * * bj^ the defendant." The latter 
 phrase undoubtedly means to pay money received by the defendanl 
 for the plaintiff, or to which the plaintiff, upon the receipt of such 
 money by the defendant, was in justice entitled. It does not 
 mean to repay to the plaintiff money received from him by the 
 defendant for the defendant's own use, which, owing to circum- 
 stances subsequently occurring, the defendant is required to 
 return. What the complaint here really alleges is a statutory 
 obligation to restore to the plaintiff part of the money originally 
 received by the defendant to its own use as statutory trustee for 
 public charity; which part, in equity and justice, as decreed by 
 the Legislature, should now be refunded to the plaintiff. That 
 right of action does not depend at all upon the receipt of the 
 license fee by the defendant. The statute gives it whether the 
 board of excise did its duty or not ; whether that board paid the 
 fee into the city treasury or not; whether, if it did, the city has 
 10 
 
14)) Decisions Relating to 
 
 applied the fee to the specified charities or not. The right of 
 action depends solely upon the two facts, first, the payment of the 
 license fee to the board ; and, second, the statutory termination of 
 the license. (Laws of 1896, chap. 112, §4.) 
 
 Our conclusion is that this right of action is not upon a contract 
 express or implied, within the meaning of that phrase as used in 
 section 420 of the Code; that it is not, in fact, upon a contract 
 at all, but upon the fiction of a promise implied by law from 
 statutory compulsion; and that it certainly is not upon an 
 implied contract to pay money received by the defendant. 
 
 It follows that the nature of the plaintiff's action was such, that 
 he could not take judgment without application to the court. 
 
 The order appealed from should, therefore, be reversed, with 
 ten dollars costs and disbursements, and the motion for judgment 
 granted, without costs. 
 
 RujisBY^ J., concurred. 
 
 Order affirmed, with ten dollars costs and disbursements. 
 
 Fourth Appellate Department, February, 1897. Reported. 14 App. DIv. 628. 
 
 Thw Teople op the State of New York ex rel. John Sweeney, 
 Appellant v. John C. Lamhehts, as County Treasurer of the 
 County of Niagara, Respondent. 
 
 Order affirmed, with disbursements. 
 
 All concurred, except Follett, J., not sitting. 
 
 Third Appellate Department, March, 1897. Reported. 15 App. DIv. 290. 
 
 The People op the State op New York ex rel. George M. 
 Thomas, Respondent, v. Martin R. Sackett, as Treasurer of 
 the County of St. Lawrence, Appellant. 
 
 Liquor Tax Law--Decision whether liquor shall be sold— It must be made 
 
 at the annual town meeting— Appeal from an order directing a tax 
 
 certificate to issue — Restitution. 
 
 The provisions of section 16 of chapter 112 of the Laws of 1896, known 
 
 as the Liquor Tax Law, providing for the submission to the electors of a 
 
 town of the question whether any liquors shall be sold there, contemplate 
 
 that action upon that proposition shall be taken at an annual town 
 
 meeting. 
 
Liquor Tax Law 147 
 
 An order reversing tlie decision of a county treasurer, in refusing to 
 Issue a liquor tax certificate, affects a substantial rigM, and is appealable 
 under section 1356 of the Code of Civil Procedure, and the county 
 treasurer, although not affected pecuniarily, is a party aggrieved, within 
 the meaning of section 1294 of the Code of Civil Procedure. 
 
 The court has power, under section 1323 of the Code of Civil Procedure, 
 to restore to a person, who has paid for a license in reliance upon an 
 order subsequently reversed upon appeal, a pro rata amount of the tax 
 paid by him. 
 
 Appeal by the defendant, Martin R. Sackett, as treasurer of the 
 county of St. Lawrence, from an order of the Supreme Court, 
 made at the St. Lawrence Special Term and entered in the office 
 of the clerk of the county of St. Lawrence on the 17th day of 
 June, 1896, reversing the decision of the county treasurer of St. 
 Lawrence county, refusing to issue a tax certificate to the relator, 
 and directing that such certificate issue. 
 
 The order was made in a proceeding upon certiorari under 
 section 28 of chapter 112 of the Laws of 1896, commonly known 
 as the Liquor Tax Law. 
 
 Ledyard P. Hale, for the Appellant. 
 
 John C. Keeler, for the Respondent. 
 
 Parker^ P. J. The relator in this matter applied to the troas 
 urer of St. Lawrence county for the certificate authorized by 
 section 19 of chapter 112 of the Laws of 1896, commonly known 
 as the Liquor Tax Law. He was a resident of the town oC 
 Edwards, in that county, and fully complied with all the require 
 ments of such section. The treasurer, however, refused to issue 
 to him a certificate, upon the ground that, at the time the above 
 cited act took effect, there was no license in the town of Edwards 
 and that no vote of such town had been since lawfully taken 
 authorizing the sale of liquor in such town. The relator there 
 upon procured, under the provisions of section 28 of that law 
 a writ of certiorari, returnable before a justice of this court 
 and upon the hearing thereof, an order was made directing the 
 county treasurer to issue a certificate to the relator, upon his 
 paying the tax required by section 11 of such act. From such 
 order an appeal is brought to this court. 
 
 It is conceded that at the time the above act became a law, 
 there was no license in the town of Edwards. Also, that a town 
 
148 Decisions Relating to 
 
 meeting was held on April '25, isytj, in such town, and the ques 
 tions allowed by section 1« of such act were tlieii submitted to 
 the voters of the town, and that a majority of the votes then 
 given were in favor of the sale of liquor in such town. 
 
 The treasurer, however, contends that, inasmuch as such meet 
 ing was a special town meeting, called merely for the purpose ot 
 submitting such questions to it, it was not such a meeting as is 
 contemplated by section IC, and that, theiefore, the vote taken 
 thereat was without force or effect. 
 
 The first question presented is whether such meeting was, oi 
 w;is not, a special town meeting, called for that purpose only. Il 
 is claimed by the respondent that, from the record before us, wt 
 canuot assume that it was not the annual town meeting then 
 held in such town. 
 
 It is true that, under the law as it now exists (§ 10 of the Town 
 Law, chap. 50!), Laws of ISIM), as amended by chap. 82, Laws ot 
 lS(i:>), the meeting for the annual election of town officers maj 
 have been held in the town of Edwards on the 2.")th of April, 1896. 
 and that the averment in the petition is substantially to that 
 effect/ But the return of the treasurer substantially denies that 
 averment by stating that the cei'tificate was refused because the 
 meeting in question was a "special town meeting" and, therefore, 
 without jurisdiction. And upon a certiorari the court is to be 
 controlled by the statement of facts contained in the return to 
 the writ. [People ex rel. y'cc/i v. Ce)m>-s.. etc., of Brooklyn, 106 
 N. Y. 64, 67.) 
 
 It also appears very clearly that the only question raised upon 
 the hearing below Avas as to the jurisdiction of such meeting, 
 and no such question could have arisen unless it had been 
 assumed that it was a special and not an annual one. T']Kin this 
 appeal, therefore, we must assume and decide the question pre- 
 sented on the theory that the meeting of April twenty-fifth was 
 a special meeting called for a special purpose. 
 
 An analysis of section 16, above referred to, shows that it pro- 
 vides for submitting to the electors of the town the question, 
 whether any liquors shall be sold therein, in the following 
 manner: First. It designates the officer who is to prepare the 
 ballots for that purpose, to wit, the officer of the town charged by 
 the Election Law with the duty of preparing official ballots. 
 Section 86 of that law (Chap. 680, Laws of 1892, as amended by 
 chap. 810, Laws of 1895) requires the town clerk to prepare 
 
Liquor Tax Law 149 
 
 such ballots for any town meeting lor the election of town officers 
 held upon a different day from a general election. There does 
 not seem to be any provision in that law, or in any other, requir- 
 ing any oflQcer to provide official ballots for any town meeting, 
 except one for the election of public officers. 
 
 Xext, it provides the time when he shall have such ballots 
 prepared, viz. : "At the time fixed by law for preparing the ballots 
 for a town election occurring next after the passage of this act." 
 
 Section 12 of the Town Law provides for the election of town 
 oflScers at the annual town meeting. 
 
 Section 25 of that law provides for "special town meetings," 
 at which certain propositions, tlierein specified, may be voted 
 upon. Such meetings are held whenever called for by certain 
 officers, or taxpayers, therein specified, and no election of officers 
 can be had at any such meeting. It is also further provided by 
 section 34 of the Town Law that no proposition then presented 
 shall be voted upon by ballot, unless a particular request and 
 notice, then provided for, is made and given, and in that case 
 the town clerk is to provide ballots therefor, either written or 
 printed, and evidently not as official ballots. No special form is 
 required for them, and evidently nothing prevents the elector 
 from using his own instead of \-oting them. 
 
 Now, what does section 16 mean by the phrase "at the time 
 fixed by law for preparing the ballots for a town election," etc.? 
 Evidently not upon any day that a special town meeting shall be 
 called and held, for there is no time fixed by law for providing 
 official ballots for such a meeting, nor any provision of law for 
 using them al such a meeting. Such a meeting is not in any sense 
 a "town election:' No officer can be elected at such a meeting, 
 find, in many instances, no ballots need be used thereat. The 
 phrase "town election," therefore, can only refer to the annual 
 town meeting at which officers are elected. For such a meeting 
 the town clerk is required by section SG of the Election Law to 
 prepare official ballots, and to have them ready and open to public 
 inspection one day before the election is held. And that election 
 day is fixed by law, and must occur on the same day in each year, 
 without any notice being given thereof. (Town Law, §§10, 26.) 
 
 It seems, therefore, that, under section 16, the meeting therein 
 referred to is the one at which a town election for officers may be 
 held ; one at which official ballots are required to be used, and for 
 which it is made the duty of the town clerk to prepare such 
 
150 Decisions Relating to 
 
 ballots at a fixed and stated time The annual town meeting ia 
 the only one to which these pi-ovisions are applicable. And when 
 that section requires the toAvn clerk to have prepared the ballots 
 therein specified, at the time fixed by law lor preparing the ballots 
 for a town election occurring next after the passage of that act, 
 it requires hiui to prepare them at the same time that he does the 
 ballots for the next annual town meeting. Thus the intent of the 
 stntute appears to submit the question at the next annual town 
 meeting, and is in hannony with the subsequent provision, that 
 the same questions shall be submitted at the annual town election 
 in every second year thereafter, if a sufflcient number of the 
 electors petition therefor. 
 
 Moreover, the statute evidently intends to preserve intact the 
 Cdudition in which it finds each town at the time the law takes 
 effect. Section 16, tibove cited, provides that in towns where no 
 license exists iit the time the act becomes a law, no liquor taj: 
 certificate shall be issued until the electors of the town shall have 
 cliaiit;ed that londitiou I)y taking a vote as provided in that 
 section. That is, the existing condition shall not be changed by 
 the mere change from the old to the new excise law. So, also, the 
 method for effecting the change, as provided by section 16, is so 
 arranged that the existing condition may not be changed any 
 sooner than it could have been had the new law never been passed. 
 That is, it can be changed at the next annual town meeting, but 
 no sooner. The new law undoubtedly intends to provide a more 
 definite and precise method for expressing the will of the electors 
 upon that subject, but it is careful not to interfere at all with the 
 existing conditions in the several towns of the State at the time 
 it takes effect. And I ih> not see any reason why a different intent 
 should be expected or sought for. It was evidently just not to 
 force upon a town that had secured, at the last annual meeting, 
 exemption from the sale of liquor therein for a year, a law that 
 would operate to change that condition, or that would force them 
 to another vote to determine what they had so recently settled. 
 
 The fact that a better method of expressing the popular will on 
 that question was to be thereafter adopted does not indicate an 
 intent to force, by its immediate use, an immediate change in a 
 condition which had, in most instances, been recently and fairly 
 adopted. 
 
 1 conclude that it was the intent of the Legislature that the 
 vofe upon the ])r()i)ositions allowed by section 16, above cited. 
 
Liquor Tax Law 151 
 
 should be had at an annual town meeting, and that, therefore, the 
 action of the meeting held on April 23, 1896, was inoperative and 
 the treasurer was correct in not recognizing the same. 
 
 It is claimed by the respondent that no appeal lies from the 
 order made at Special Term in this matter. The writ of certiorari 
 is a special proceeding (Code, tit. 2, chap. 16), and the order from 
 which this appeal is taken affects a substantial right therein. It 
 is, therefore, appealable under section 1356 of the Code. The 
 county treasurer, by that order, is directed to do an act which, 
 as a public officer, he is not authorized to do, and, although it 
 does not affect him pecuniarily, he has such an interest in the 
 subject as to make him a party aggrieved within the meaning of 
 section 1291 of the Code. (People ex rel. Burnham v. Jones, 110 
 N. Y. 509; People ex rel. French v. Town, 1 App. Div. 127.) 
 
 It does not appear from the record whether or not the tax has 
 been paid and a certificate issued, but we understand it to be 
 conceded upon the argument that such is the case. Under such 
 circumstances. Justice requires that restitution of the amount 
 should be made. The relator paid the tax relying upon the order 
 which we now reverse, and we are of the opinion that the case, 
 therefore, comes within the provisions of section 1323 of the Code 
 Under that section this court has power to order restitution. We, 
 therefore, conclude that an order should be entered reversing the 
 order appealed from, with costs in the court below, and revoking 
 and canceling the tax certificate issued, and awarding restitution 
 to the relator of a pro rata amount of the tax paid by him 
 therefor, with ten dollars costs and disbursements to the appellant 
 of this appeal. 
 
 All concurred. 
 
 Order reversed, with costs in court below, and tax certificate 
 canceled, and restitution of a ratable amount of the tax paid 
 ordered, with ten dollars costs and disbursements of this appeal. 
 
r)Ecisi(>.\s Relating to 
 
 Court of General Sessions, New York County, March, 1897. Reported 
 
 19 Misc. 665. 
 
 The People v. Constant Bouuolin. 
 
 Liquor Tax Law — Violations of — lurisdiction. 
 
 The grand jury and courts of New York county have jurisdiction oi 
 violations of the Liquor Tax Law committed in the territory annexed to 
 New Yorli city by chapter 934, Laws of 1895. 
 
 Dejiuerer to indictmeut. 
 
 Jolin D. Lindsay, assistant distritl attorney, for the People. 
 
 J >a\id H. Hunt, for defendant. 
 
 :\1cMah(in, J. Tlie del'endant is cliarged witli violation of the 
 Li([uor Tax l^aw, chapter Ll:^, Laws of ISOG. 
 
 It is alleged in the indictment that the offense was committed 
 in that portion of the city of New Yorli which was annexed to 
 the county of New York liy chapter lt:U of the Laws of 1895. 
 
 A demurrer has been submitted in his behalf on the ground 
 that the grand jury of Xew Y'ork county had no legal authority 
 to inquire into the crime charged, by reason of its not being 
 within the legal jurisdiction of the county. 
 
 The territory in which the olleiise is alleged to have been com 
 mitted was "set off from the county of Westchester and annexed 
 to, merged in and made part of the city and county of Xew Y'ork,'" 
 by the provisions of cha]>ter 034 of the Laws of 1895. 
 
 To sustain the demuiver the defendant relies upon the 
 following provision of the Liquor Tax Law, which took eflfeci 
 March 23, 1896, and especially relates to the territory in which 
 the offense is laid: 
 
 "If, since the latest State enumeration was taken, the boun 
 daries of a city have been cliang(>d by the addition of territory not 
 in the same judicial district, such annexed territory shall not be 
 deemed to be a part of such city foi' the purposes of this act 
 but such annexed territory shall be deemed to be a town, and all 
 the provisions of this act shall be applicable to such annexed 
 territory the same as if it had not been so annexed, except that 
 all the money which would otherwise be payable to the town 
 
Liquor Tax Law 153 
 
 under this act shall be paid to the city to which such territory 
 was annexed." Liquor Tax Law, subd. i, § 11. 
 
 There has been no State enumeration since the passage of this 
 act. 
 
 The act of 189.5, cited by the learned district attorney, made 
 the annexed district part of the city a)id county of New York, 
 and it so remains. The act of 1896 declares that "for the pur- 
 poses of this act '" this territory shall not be deemed a part of 
 the citij of New York. What are the purposes of this act? 
 Clearly, to impose a tax upon the liquor traffic within the State 
 and to regulate the collection of the same. It surely was no 
 part of the purpose of this act to change the mode of procedure 
 for the prosecution and punishment of crime. On the contrary, 
 as far as it touches upon that subject, it re-enacts (section 35) 
 the sections of the Code of Criminal Procedure, and prescribes 
 that "All proceedings instituted for the punishment of any viola- 
 tion of the jnovisions of this act, the penalties for which are pre- 
 scribed in section thirty-four, shall be prosecuted by indictment 
 by the grand jury of the county in which the crime was com- 
 mitted, and by trial in a court of record having jurisdiction for 
 the trial of crimes of the grade of a felony." Other sections of 
 the same act impose obligations or confer privileges in towns 
 and villages not imposed or permitted in cities. For instance, a 
 light tax-rate and local option are allowed to towns but denied 
 to cities. The distance from schools, churches and public 
 institutions, within which the traffic is permitted in cities and 
 towns, also varies in the act, and it is, no doubt, for these reasons 
 that, with the exception stated in the provision quoted above 
 relating to the payment of money collected, all the provisions of 
 the act were made applicable to such annexed territory the same 
 as if it had not been annexed to the city of New York. The 
 territory in question is sparsely populated, and to subject it to 
 the rigid regulations and high tax prescribed for the flrst-class 
 city of which it becomes a part would have been oppressive. 
 
 The legislature, within constitutional limitations, has the 
 undoubted right, and has often exercised it, of segregating part 
 of a county and attaching it to another, or of attaching part of 
 a county to a city without changing the county lines, and the 
 act of 1895, by its terms, sets off from the county of Westchester 
 and merges in the city and county of New York, certain territory, 
 while a subsequent enactment declares that for certain purposes 
 
154 Decisions Relating to 
 
 this territory is not to he dcrmed part of said cil.v, but should, 
 for the purposes indiculcd, remain the same as if it had not 
 been so annexed. It is ver^y clear from the text that the words- 
 "so annexed," as used in this seetion, mean the annexation ro 
 the city of New Yorli, not llie annexation 1o 1lie eounty. 
 
 It follows that for all jjurjioses other than those indicated in 
 the Liquor Tax Law, the leiiiloiy in (jucstion is part of the 
 county of New York, and subject to (lie jurisdiction of tlie f;rand 
 jury and coiiits of that coiiiilv in all matlers pertaining to thi? 
 prosecution and punishment of crime. 
 
 The demurrer is disallowed. 
 
 (Ordered accordingly. 
 
 Supreme Court, Ulster Special Term, April, 1897. Reported. 20 Misc. 80. 
 
 The I'i;(jple ex rel. William II. D. Swiarr v. Henry II. Lyman. 
 Slate Commissioner of Excise. 
 
 1. Civil service — Appointment. 
 
 The provision of cliapter 354, Laws of ISS:!, providing for probationary 
 appointments, must be read with chapter 821, Laws of 1896, and is 
 intended as a means, in connection with the examination of the civil 
 service board, of ascertaining the applicant's qualiflcations and fitness in 
 advance of an appointment. 
 
 2. Veterans — Probationary appointment — Removal. 
 
 A veteran who has received a probationary appointment is not "holding 
 a position" within the meaning of these words in chapter 821, Laws of 
 1896, and is not entitled to notice and hearing upon charges before 
 removal. 
 
 Motion for a jieremptory mandamus commandint; the 
 defendant to reinstate tlie relator as special aj;ent in the excis(> 
 department of (lie State of New Yoi'k. 
 
 Eugene D. Flanigan, for relator. 
 
 >!. D. Jt. ITasbrouck, Deputy Attorney-(;eiieral, for defendant. 
 
 Chase, J. The relator is a citizen and resident of the State 
 of New York and was a soldier in the Union army during the 
 War of the Kehellioii, and was honorably discharged therefrom. 
 
Liquor Tax Law 155 
 
 He never served in the Coniederate army or uavy. In the montb 
 of June, 1896, he presented himself before the civil service board 
 of examiners of the State of New York to be examined for the 
 position of special agent, created under and by virtue of chapter 
 112 of the Laws of 1896, known as the "Liquor Tax Law," and did 
 at such time take the examination submitted by the said board 
 to him for such position. 
 
 At the time of such examination he presented to and tiled with 
 said board his certificate of honorable discharge as such Union 
 soldier and claimed the benefits and preferences arising there- 
 under. 
 
 He successfully passed said examination and his name was 
 placed xipou the resiister of applicants eligible for appointment, 
 and his name was certified to the commissioner of excise as an 
 honorably discharged Union soldier eligible to appointment as 
 special agent. 
 
 On the 2Sth day of September, 1896, the relator received a 
 letter from the commissioner of excise, dated September 25th, 
 which letter is as follows: "This is to inform you that, under the 
 Iirovisions of the civil service rules, I have selected you for 
 appointment to the position of special agent in this department 
 fm- a ijr.ihationary term of three months, from the date when you 
 hcixin service. Should your conduct and efficiency during such 
 probationary term prove satisfactory you will, at its close, receive 
 a regular appointment, otherwise your employment will cease. 
 The salary attached to such jiosition is at the rate of |1,200 per 
 annum. 
 
 "This conditional appointment does not preclude prompt 
 discharge from service at any time during such probationary 
 term, in case of misconduct or inefficiency. 
 
 "A prompt rei)ly is requested, stating whether this appointment 
 is accepted, and giving the earliest date when you can present 
 yourself for service." 
 
 He nccepted such appointment and on the same day presented 
 himself for ser\ice, and was assigned and detailed for duty at 
 Ogdensburg, N. Y., his appointment dating from September 25, 
 1 896. 
 
 On or about the 20th day of December, 1896, he received a letter 
 from the commissioner of excise, dated December 19, 1S96, which 
 letter is as follows: 
 
 "I have to inform von that your efficiency and capacity for the 
 
If)!) Decisions Relating to 
 
 wuik required of a special agent, during your cmijloyment in this 
 department, I'or a pvdiiationary term of thi-ec; months, have not 
 been found satislaetory and that in accordance with the terms of 
 your original appointment, as prescribed in the civil service rule 
 No. .'10, your employment by this department will cease on the 
 2:\d (lay of December, 1896." 
 
 He has not been connected with the excise department since 
 said 23d day of December, 1896. 
 
 The relator claims that, pursuant to chapter s21, Laws of 1896, 
 lie was holding a position by appointment or employment and he 
 should h.ne been t;iven a hearing upon due notice upon the charges 
 made before removal, and that his removal without formal 
 chari;cs, notice and bearing was unlawful. 
 
 Seclion 2, chapter;'..")!. Laws of 188:!, provides: 
 "§ 2. K shall !)e the duly ol' said commission : First. To aid the 
 iiovei'nor. as be may i-equest, in preparing suitable rules for carry- 
 ing this aci into elVect; and when said rules shall have been 
 promuli;:iled, it shall be the duty of all officers of the State of 
 New York, in the departments and oflices to which any such rules 
 may relate, to aid, in all jirojier ways, in carrying said rules, and 
 any modification thereof, into effect. 
 
 "Second. And, among olher things, said rules shall provide and 
 declare, as nearly as The conditions of good administration will 
 wan-ant, as I'dllows: * * * 3. There shall be a period of 
 probation be lore any absolute appointment or employment afore- 
 said. * » * s. Ntitice shall be given in writing by the 
 ap]iointing jiower to said commission * * * of the rejection 
 of any such persons after probation * * *." 
 
 Among the rules promulgated in accordance with the statutes 
 in force when relator accepted the appointment on September 25, 
 ISOli, was rule 3(1, which is as follows: ''Every original appoint- 
 ment or employment in the civil service shall be for a probation- 
 ary term of three months, at the end of which time, if the conduct 
 and capacity of the jierson appointed or employed shall have heen 
 found satisfactory, the probationer shall be absolutely appointed 
 or employed, but otherwise his appointment shall cease." 
 
 Among the rules promulgated December 9, 1896, is rule 12, 
 which is as follows : '1. Every original appointment to or employ- 
 ment in any position in class IT shall be for a probationary term 
 of three months, and an api)ointing or nominating ofHcer in notify- 
 ing a person selected by him for appointment or employment 
 
Liquor Tax Law 157 
 
 shall specify the same as for a probationary term only ; and at the 
 end of such term if the conduct, capacity and fitness of the 
 probationer are satisfactory to the appointing officer, his retention 
 in the service shall be equivalent to his absolute appointment, but 
 if his conduct, capacity or fitness be not satisfactory, he may be 
 discharged at any time." 
 
 Chapter S.!!, Laws 1896, provides as follows : 
 
 "§ 1. In every public department and upon all public works of 
 the State of Xew York, and of the cities, counties, towns and 
 villages thereof * * * honorably-discharged Union soldiers, 
 sailors and marines shall be preferred for appointment, employ- 
 ment and promotion ; age, loss of limb, or other physical 
 impairment which does not, in fact, incapacitate, shall not be 
 deemed to disqualify them, provided they possess the business 
 capacity necessary to discharge the duties of the position involved. 
 And no person holding a position by appointment or employment 
 in the State of New York * * * -^^ho is an honorably- 
 discharged soldier, sailor or marine, having served as such in the 
 Union army or navy during the war of the Rebellion, and who 
 shall not have served in the Confederate army or navy, shall be 
 removed irom such position or employment except for incompet- 
 ency or misconduct shown, after a hearing upon due notice 
 ♦ * » jj 
 
 The statute of 1896 gives honorably-discharged soldiers, sailors 
 and marines a preference for appointment, employment and 
 promotion in every public department and upon all public works 
 of the State, and in the cities, counties, towns and villages of 
 the State. The Legislature also intended by this statute to give 
 to soldiers, sailors and marines after appointment security of 
 tenure in their positions, and it also intended to remove them 
 from all political, partisan or personal influence. A soldier, 
 sailor, or marine holding a position mentioned in the act of 1896, 
 has, so long as the service is required, an absolute legal right to 
 continue in the place to which he is appointed indefinitely unless 
 removed "for incompetency or misconduct shown, after a hearing 
 upon due notice upon the charge made." It is not, however, 
 intended by this act to exclude from consideration the question of 
 capacity and fitness. The act in effect provides that a person 
 applying for an appointment or for employment, although a 
 soldier, sailor or marine, who has passed the formal examination, 
 shall possess the business capa.city necessary to discharge the 
 
158 Decisions Kiolating to 
 
 duties o! llio position involved. It is essential thiit tlici'c be some 
 Wiiy devised by Koneial rules, or by the appointing power, to 
 determine as to each apjilicant's business cai)acity. (Jne of the 
 ways devised for determining wlietlicr the applicant, including 
 soldiers, sailoi's and marines, jiossesses the business capacity 
 necessary to discharge llic duties ot the position involved, is to 
 give a jirohadonary appointment as provided and directed by the 
 act of iss;! and the rules promulgated pursuant to that act. 
 
 The provision of the act of 18S3 in regard to a probationary 
 appointment must be read with the act of 189G, and is intended 
 as a means, in coiniection with the examination of the civil service 
 board, of ascertaining the applicant's qualifications and fitness in 
 advance of an appointment. See People ex rel. ^'an I'etten r. 
 Cobb, l.'! App. Div. 56. 
 
 According to the commissioner of excise the relator was 
 examineil fo ascertain whether he had the ncccftsari/ business 
 (■(i/xicit// to fill the position of special agent under the "Liquor 
 Tax Law." The examination was made by giving him a three 
 months' I rial, and as his efficiency and capacity were not satis- 
 factory, he was not appointed. 
 
 I do not mean to hold that there is no way to review the action 
 ol' the commissioner of excise, but I am of the opinion that relator 
 was not entitled to notice and hearing upon charges made by the 
 commissioner of excise, as provided by chapter 821 of the Laws 
 of IsiHi, for the reason that on the 23d day of December. ISDd, 
 he was no! holding a position within the meaning of those words 
 in that act. 
 
 The motion is denied. 
 Motion denied. 
 
Liquor Tax Law 159 
 
 County Court, Onondaga County, April, 1897. Reported. 20 Misc. 149. 
 The People ex rel. John Shortell v. John D. Markell. 
 
 Criminal law — Public intoxication — Liquor Tax Law. 
 
 The offense of intoxication in a public place, in violation of section 40 
 of the Liquor Tax Law (Laws 1896, chap. 112), is a misdemeanor, of 
 which a Court of Special Sessions has Jurisdiction. 
 
 Return of a habeas corpus to inquire as to the cause of the 
 detention of the relator. 
 
 The relator was, on the 21st of December, 18U(J, tried in the 
 Police Coux't of the city of fjyracuse, charged with being a dis- 
 orderly person, having been intoxicated in a public place or 
 street, to wit, Water street in said city of Syracuse, in violation 
 of section 40, chapter 112 of the Excise Law of 189G, and having 
 pleaded guilty was convicted and adjudged that he be imprisoned 
 in the Onondaga County Penitentiary for six months. A return 
 was made by the defendant, the superintendent of the Onondaga 
 County Penitentiary, stating the above facts. 
 
 M. L. iNfcCarthy, for the relator. 
 
 George W. Standen, Assistant District Attorney, for defendant. 
 
 Ross, J. It is claimed by the relator that the conviction by 
 the Court of Special Sessions was unauthorized and that no 
 jurisdiction is given to said court by the provisions of the act 
 in question. Section 40 reads as follows: "Intoxication in n 
 public place. Any person intoxicated in a public place is a 
 disorderly person and may be arrested without warrant while 
 so intoxicated, and shall be punished by a fine of not less than 
 three nor more than ten dollars, or by imprisonment not exceed- 
 ing six months or by both such fine and imprisonment. The 
 purchase or procurement of liquor for any person to whom 
 it is forbidden to sell liquor under section 30 of this act, is a 
 misdemeanor, punishable upon conviction, by a fine of not less 
 than ten dollars or by imprisonment not exceeding six months, or 
 by both such fine and imprisonment." 
 
 It has recently been held in the Sixth Judicial District in the 
 case of People ex rel. McCarthy v. Webster (unreported and no 
 
Kilt I)i:ri.sio.\s Relating to 
 
 opinion), by iMr. Justice A\'alter Lloyd Smith, that a person 
 charged with public intoxication under section 40 is a disorderly 
 person subject to suiiiiiiary care Ity a magistrate jjursuant to 
 the provisions of part G, title 7, oi the <-'ode of (Jriuiinal Pro- 
 cedure, sections >i'M to 913, inclusive, and that a conviction of 
 a Court of Special Sessions and a commitment to a penitentiary 
 is unauthorized. A decision of that learned justice is entitled 
 to great weight but the decision referred to was rendered while 
 the justice was engaged at Circuit and disposed of as usually 
 those proceedings are, hastily, and without an opportunity for 
 careful examination. The use of the words "disorderly person"' 
 in the first clause of section 40, and the omission of the words 
 specifically declaring the offense in questicm to be a misdemeanor, 
 coupled with the declaration that a violation of the acts for- 
 bidden in the secoud sentence of the section are mis- 
 demeanors, would lend much forte to the position taken 
 by the learned justice. But see opinion of Mr. Justice Trntt 
 in T'.ehan v. l*eople, 17 N. Y. .'"il6, hereafter inserted. Also sectim. 
 4l! of the act in question specilirally provides that a viola 
 tion of any provisiou of the act for which no punishment is 
 otherwise proviiled is a misdemeanor. 
 
 The pro\isi<ins of title 7, above mentioned, in brief defined nine 
 classes of ])ersons who are termed disorderly persons. The first 
 and second subdivisions relate to persons who neglect to provide 
 for tlieir families. The other persons classified are fortune tellers, 
 jugglers, habitual criminals and so forth, and upon a conviction 
 by a magistrate provision is made that the defendant may give 
 security in those cases where he is charged with neglect to support 
 his family that tlii'v will not beccnne a charge, for one year, upon 
 the public; and in the other cases for his good behavior during the 
 space of one year. 
 
 The Legislature may add new offenses ol' the same grade or 
 class as those jirevionsly constituting a disorderly person, but 
 they can not by declaring an ofifense which at common law is 
 indictable to be punislu'd summarily in the itrovisions relating to 
 disorderly persons. 1 (^olby's Criminal Law, 13S. 
 
 But assuming that such authority exists and that the Legisla- 
 ture had the right to dejirive in this manner a person charged 
 with intoxication in ,i jmblic jdace of the rigjit to trial by a jury, 
 such a i-adii-al change in the method of disposing of this class of 
 offenses can not be inferred and such intent must be manifest. 
 
LiQUOE Tax Law 161 
 
 The attempt to incorporate the provisions of the first sentence of 
 section 40 of chapter 112, Laws of 1896, in or to add the same to 
 title 7, Code Criminal Procedure, is most incongruous and unsatis- 
 factory. The proN'isions of section 40 authorize an arrest without 
 warra.nt, while the provisions of section 900 require both a 
 warrant and complaint. The persons classed as disorderly 
 persons are all cases of threatened rather than consummated mis- 
 conduct, as was said in the case of Hill v. People, 20 N. Y. 368 : 
 "In those cases, persons are charged with habitual misconduct, 
 and not with a specific offense." And a provision creating an 
 additional class of disorderly persons without making any change 
 from the former method of punishment is useless. If a person 
 convicted of being intoxicated in a public place can be arrested 
 without a complaint and without a warrant as heretofore, and 
 punished in the same manner as before, to simply term him a 
 disorderly person has no meaning. 
 
 Again the silence of the statute as to any method of procedure 
 relating to this class of persons, would seem to be very strong 
 evidence that it was not intended. If it was intended to remove 
 these offenders from a classification with those who are charged 
 with the actual commission of crime and treat public intoxication, 
 not as a crime consummated, but as an act to be prevented, which 
 is contrary' to the actual fact, the entire details of such a change 
 would not be left to inference. But beyond all, such an interpreta- 
 tion is contrary to all preceding legislation existing in this State 
 for nearly a century. And in arriving at a question of legislative 
 intent, the previous legislation upon the same subject is not 'mly 
 important, but a change of so radical a nature as that perhaps con 
 not be presumed, as was said by Mr. Judge Pratt in the Behan 
 case : "It has been the policy of the State, at least since the year 
 1801, if not before, to make offenses against the excise laws punish- 
 able by indictment * * *. The presumption, therefore, is 
 against the design on the part of the Legislature, in the restoratioji 
 of the license laws, to change a policy s<i long adhered to. It 
 should require a clear expression of the legislative will to that 
 effect to justify the courts in holding that offenses against those 
 laws are no longer indictable." Hill v. People, 20 N. Y. 363. It 
 would require a great deal of hardihood to judicially determine 
 that after an almost uniform course of legislation in this State 
 for nearly a century declaring that public intoxication is a 
 crime and providing for its punishment, that the Legislature of 
 11 
 
HV2 DiocLsjONS Rblatinc; to 
 
 lS!)(j intended to omit or did omll any provision J'oi- tlic punish 
 niciit oC this criraej this mosi cunimon of all crimes. Such an 
 interpretation would leave the public unprotected in this regard, 
 not only by its omission from the act in question, which was 
 designed as a uniform and complete act upon the subject to which 
 it relates, but by the language of section 44 repeals all special 
 or local laws in conflict with its provisions, which would at least 
 render it doubtlul whether the provisions of the various city 
 chartcis in relntion to this subject would afford any protection 
 and in those localities unaffected by local or special laws there 
 woTild be no protection whatever. 
 
 The oll'eiise in (nieslioii is not only not termed a misdemeanor, 
 but the offemiei- is ealled a "disordei-ly person'' and the punish 
 meut is |ires(iiii(.(l. If no punishment were fixed it would seem 
 to be included in the provisions of section 42, which provides that 
 any wilful violation of a provision of this act for which no 
 punishment or jjemilty is presciibed shall be a misdemeanor. 
 Mr. Judyc Folnv,-, in the ease of Foote v. People, 56 N. Y. 330 
 and 331, said of the act of lS.~j7 : "We find the statute throughout 
 declaring certain acts to be offenses; often giving to them no 
 place in the j^radation of crime and affixing to them no punish- 
 ment usually inflicled upon a criminal offender; and again, 
 ranking others of them as misdemeanors and specifying the 
 punishment, or specifying the punishment with no nomin.ition of 
 the grade of the offense." 
 
 Take section i;! of the art of lS.-,7 as an illusii-ation ,.r the class 
 last named by the learned judj^e: "Whoever shall s(>ll any strong 
 or spirituous liquors or wines in (luantities less than five gallons 
 at a time, without having a license therefor, granted as herein 
 provided, shall forfeit fifty dollars for each offense." A violation 
 of this section was held to be a misdemeanor in 1lie itelnui case. 
 in which Mr. Judge I'ratt, on page r,20, used tlie following 
 language: "The only reasons worlhy of consideration which have 
 been suggested, in opi,<,sition to the views ex|)ressed al)ove, are 
 based upon the fact tliat the act itself declares some thre(> or 
 four of the violations of its provisions misdemeanors. It is in- 
 sisted that the maxim, 'm'i>rvst<i<, uuiiis <-st c.n-hisio ulterius,' in 
 its legal api.licatirm to this slatiHe, wonld exclude the assumption 
 that any oilier offenses were designed to l)e deemed misde- 
 meanors. In a stalnle which appears to have been carefully 
 drawn up, and all its provisions carefully considered, I should 
 
Liquor Tax Law 163 
 
 be inclined to give great force to that maxim; but the statute 
 under consideration appears upon its face to have been very 
 carelessly framed, and to have been adopted without a verj' care- 
 ful consideration of its provisions. In such case, it would not 
 be safe to give that maxim much force. It would be much safer 
 to look at the general scope and purpose of the act, and to 
 search there for an expression of the legislative intention; and 
 in looking over all the provisions of the act, in their general 
 scope and tenor, I cannot resist the conviction that offenses 
 against its provisions were designed to be punishable as misde- 
 meanors." 
 
 I think the Behan case is in point. The cases are similar in 
 that there is no nomination of the crime unless the words "dis- 
 orderly person" is such a nomination. Also, in the fact that 
 the punishment is specified. The words "disorderly person" are, 
 I believe, merely descriptive, as was said by ^Ir. Judge Strong, in 
 Hill -v. People, 20 N. Y. 368 : "Persons Avho are found intoxicated 
 in public places may well.be considered as disorderly at the time; 
 so may persons when perpetrating almost any crime, but when 
 publicly arraigned for the offense they cannot be summarily 
 tried by the magistrate alone, under the act relative to disorderly 
 persons." And I think the words in question are to be interpreted 
 the same as if the words "is a criminal" were inserted. 
 
 The act is forbidden and punishment is prescribed. Section "> 
 of the Penal Code defines a crime: "A crime is an act or 
 omission forbidden by law and punishable upon conviction by 
 
 "1. Death. 
 
 "2. Imprisonment. 
 
 "3. Fine." * * * 
 
 Section 4 provides that a crime is either, 
 
 "1. A felony, or 
 
 "2. A misdemeanor." 
 
 Section 5. "A felony is a crime which is or may be punishable 
 by either, 
 
 "1. Death, or 
 
 "2. Imprisonment in a State prison." 
 
 Section 6. "Any other crime is a misdemeanor." It would, 
 therefore, seem that if this act is forbidden by law, that by the 
 process of elimination it is necessarily a misdemeanor. 
 
 It was held in the case of The People ex rel. Kopp v. French, 
 102 X. Y. .oS", that the offense of intoxication created by the 
 
Ki! JJeciskix.s ]ii;i.ATixc to 
 
 Excise Law of ISfu (Cliap. CHS, § 17) is ;i ciiinc. If the charge 
 of public iutoxication is a misdciiR'aiKjr, tlic police justice sitting 
 as a police court had jurisdiction and a (:(mvirlion was 
 authorized. State Const., art. (i, § 2o ; (,'od<! < 'rim. Pro. 
 §§."i(i and 74; Penal (Vide, § 7-~>. subd. '■',; cliarter of the City of 
 Syracuse, §§ 52, 53. 
 
 The writ dismissed and relator remanded. 
 
 As the term of imprisonment of the relator will expire before 
 he can have this decision reviewed by the Appellate Division, a 
 stay is granted upon the relator's y;iving an undertaking in the 
 sum of |3(H). But if an appeal is not taken within three days 
 from the entry of an order hereon, or the relator does not serve 
 his case upon the district attorney within twenty days thereafter, 
 or does not argue or submit the appeal at the June term of the 
 Appellate Division, then upon his default in any of these par- 
 ticulars, the stay herein will be vacated without notice. 
 
 Ordered accordingly. 
 
 First Appellate Department, April, 1897. Reported. 16 App. Div. 379. 
 
 In the :\ratter of the Application of Gregoe Mosee for a Writ of 
 Certiorari, Eespondent, v. Kael Sciieib, Appellant, Impleaded 
 with Others. 
 
 Proceedings to annul a liquor tax certificate — An order returnable after 
 ten days is void. 
 
 An order issued in a proceeding talcen to annul a liquor tax certificate, 
 made returnable fifteen days, instead of not more than ten as required 
 by the statute, after the granting thereof, will be reversed. 
 
 Appeal by Karl Srhoib Iroiii an order of the Supreme Court, 
 made at the New York S]ic(ial Term and entered in the office of 
 the clerk of the county (»f New York, on the 2d day of January, 
 1897, revoking a liquor tax certificate issued to Karl Scheib, a 
 writ of certiorari to i-eview tlu' action of tlie si)ecial deiiuly excise 
 commissioner in granting such liquor tax certificate to saia 
 Sclieib having been granted upon the ground that he was not a 
 citizen of the United States. 
 
 Thomas P. Mullif/aiv, for the appellant. 
 Leopold \V. llarhurgrr, for the respondent. 
 
LiQuoE Tax Law 165 
 
 Pbu Curiam. The court was without jurisdiction to make 
 the order appealed from. 
 
 In a proceeding taken to annul a liquor tax certificate, the 
 statute provides for the granting of "an order requiring the 
 holder of such certificate * * * to appear * * * on a 
 day specified therein, not more than ten days after the granting 
 thereof." (Laws of 1896, chap. 112, § 2S.) 
 
 The order issued in this proceeding was made returnable fifteen 
 days after the granting thereof. 
 
 The order should be reversed, with ten dollars costs and print- 
 ing disbursements. 
 
 Present — Vax Brunt^ P. J., Eumsey, Williams, Patterson 
 and Parker^ JJ. 
 
 Order reversed, with ten dollars costs and disbursements. 
 
 Supreme Court, Columbia Special Term, April, 1897. Unreported. 
 
 In the Matter of the Application of Hardee to revoke the Liquor 
 Tax Certificate of Jajies ^IcNajiee. 
 
 Edwards, J. This proceeding is brought for the revocation and 
 cancellation of a liquor tax certificate upon the ground that the 
 holder of such certificate did not procure the consent in writing 
 of two-thirds of the owners of the buildings occupied exclusively 
 for dwellings, situated within two hundred feet of the nearest 
 entrance to the premises in which the trafflc in liquor is carried 
 on. There are two buildings occupied exclusively for dwellings, 
 the nearest entrance to each of which is within two hundred feet 
 to the nearest entrance of the defendant's saloon. Until the time 
 when the application for a license was made, each of these two 
 buildings had a single owner and the consent of both was then 
 necessary to the procuring of a license. On the day on which the 
 application for a license was made, the owner of one of these 
 buildings conveyed an undivided interest in the same to his wife, 
 and immediately thereupon he and his wife signed a consent in 
 writing that traffic in liquors might be carried on in the 
 defendant's premises. This conveyance of an undivided interest 
 to the wife was evidently executed at the defendant's request, and 
 
Kid Decisions Relating to 
 
 for (lie purpose of enabling him to procure the consent required 
 liy statute. 
 
 The question presented is whether the defendant has complied 
 with the provisions of subdivision 8 of section 17 of chapter 112 
 of the Laws of 1896, which reads as follows : "When the nearest 
 entrance to the premises dc^scribed in said statement as those in 
 which traffic in liquor is to be carried on is within two hundred 
 feet of the nearest entrance to a building or buildings occupied 
 exclusively for a dwelling, there shall also be so filed simultane- 
 ously with said statement a consent in writing that such traffic in 
 liquors be so carried on in said premises during a term therein 
 stated, executed by at least two-thirds of the owners of such 
 buildings within two hundred feet so occupied as dwellings." 
 
 The determination of the (|uestion requires a judicial construc- 
 tion of the statute. In the interpretation of the statutes it is a 
 settled and familiar rule that the intention of the Legislature 
 should control. The legislative jmrpose in making a statute is the 
 key to its jiroper construction. "It is a familiar canon of con- 
 struction that a thing which is within the intention of the makers 
 oC a statute is as much within the statute as if it were within the 
 letter and the thing which is within the letter of a statute is not 
 within the statute unless it be within the intention of the makers." 
 Uiggs V. I'aliiier, 115 N. Y. 509. 
 
 The obvious jmrpose of the enactment requiring the consent 
 of two-thirds ol' the ownei's of buildings the nearest entrance of 
 which is within two hundred feet to the nearest entrance of 
 the building in which the traffic in liquor is to be carried on, is 
 to protect the owners of dwellings and the families occupying the 
 same, against the annoyances and baneful influences of the 
 saloon. To effectuate this purpose it is evident that each build- 
 ing should be considered as a unit irrespective of the number of 
 owners. If, in determining whether two-thiids of the owners 
 have signed the consent, each owner of any undivided interest 
 however small, in any one building, is to be counted, the benefi- 
 cent purpose of the statute could almost invariably be defeated. 
 If, within the prohibited distance of two hundred feet of the 
 proposed saloon there are S(>veral buildings occupied by families 
 exclusively for dwellings, all of the owners of which but one 
 are opposed to the presence of the saloon, such opposition might 
 easily be thwarted by a conveyance by the owner of the one 
 building, of several minute interests therein to a sufficient 
 
Liquor Tax Law 167 
 
 number of persons to constitute the two-thirds required by 
 statute. It is quite clear that the statute must be so construed 
 as to require the consent of the owner or owners of at least two 
 thirds of the total number of buildings occupied as dwellings 
 within the two hundred feet. Only such an interpretation of 
 the statute can effectuate the intention of the legislature. 
 
 A recent amendment of this section requirciS that the consent 
 in writing be "executed by the owner or owners or by the duly 
 authorized agent or agents of such owner or owners of at least 
 two-thirds of the total number of such buildings within two 
 hundred feet so occupied as dwellings." The manifest purpose of 
 this change in the phraseology of the statute was to make the 
 statute more clear and explicit. It is not a change of the legis- 
 lative intent or the substance of the former statute but it is 
 rather a legislative construction of the statute as it existed when 
 the defendant's application for a certificate was made. 
 
 The prayer of the petitioner should be granted with costs, 
 to be fixed on the settlement of the order at my chambers on 
 the 29th day of April, at 3 o'clock in the afternoon. 
 
 Supreme Court, Ontario Special Term, April, 1897. Unreported. 
 
 In the Matter of the Application of Mexzo W. Johnston t') 
 Revoke a Liquor Tax Certificate of John H. Fogarty, et al. 
 
 Royal E. Scott, attorney for petitioner. 
 
 Hon. John P. Kinney, attorney for respondents. 
 
 Werner, J. This is a proceeding under section 28 of chap. 112 
 of the Laws of 1896, commonly known as the "Liquor Tax Law'" 
 to obtain an order revoking a liquor tax certificate issued on the 
 11th day of August, 1896, by George N. Parmele, County Treas- 
 urer of Ontario county, to John H. Fogarty and John L. Ryau, 
 comprising the firm of Fogarty & Ryan, in the village of Victor, 
 in said county. 
 
 Two of the specific grounds enumerated in the statute as 
 sufficient reasons for the revocation of said certificate are defin- 
 itely set forth in the petition herein in substance as follows: 
 
Ids Decisions Relating to 
 
 That there is, upon the same street upon which is located the 
 building occupied by the respondents lor trafUc in liquors and 
 within two hundred feet of the same, a building which is used 
 and occupied exclusively as a church; and that the respondents 
 did not tile, simultaneously with their statement or application 
 for said certificate, the consent in writing of at least two-thirds of 
 the owners of buildings occupied exclusively as dwellings located 
 within two hundred feet of the nearest entrance to tne place 
 in which such trafflc in liquors was to be carried on. 
 
 A third ground now relied upon, and as to which evidence 
 was adduced before the referee, but the facts in relation to which 
 are not set forth in the petition, is that prior to the application 
 for said certificate, John H. Fogarty, one of the respondents, was 
 convicted of beiiij; a common gambler under section 344 of the 
 Penal Code. 
 
 Subdivision 1 of section 1':! of said "Li(juor Tax Law" provides 
 that "No person who shall ]ia\e been or shall be convicted of 
 felony" shall trafiSc in liquors. Among other statements con- 
 tained in respondents' application for said certificate is the 
 following : 
 
 "10. ]\Iay the applicant or applicants lawfully carry on such 
 traflSc on said premises under said subdivision? Yes." 
 
 The fact of Fogarty 's conviction is clearly established and the 
 answer to the tenth interrogatory of said statement was mani- 
 festly untrue. But section 28 of said .Vet by which applications 
 for revocation of certilicat(-s arc authorized to be made, pro- 
 vides that the petition upon which the proceeding for revocation 
 is based, shall state the facts which entitle the petitioner to the 
 relief prayed for. There is no reference in the petition herein to 
 the said conviction of Fogarty and this omission precludes tho 
 court from considering that as one of the grounds upon which the 
 certificate issued to the respondents may be revoked. 
 
 It is clearly established that there is a building occupied exclus- 
 ively as a church upon the same street with the building occupied 
 by the respondents for their business of trafficking ^n liquor, 
 and within two hundred feet thereof, measuring from the nearest 
 entrance of resjwndents' building to the nearest entrance to said 
 church. The distance between tliese two points is shown by 
 actual measurement to be one hundred and ninety -two feet. The 
 respondents claim <>xemption from the prohibition of tli<^ statute 
 against traflac in liquors within two hundred feet of a church or 
 
LiQUOE Tax Law 169 
 
 school house by virtue of the provision that said "prohibition 
 shall not apply to a place which is occupied for a hotel nor to a 
 place in which such trafllc in liquors is actually lawfully carried 
 on when this act takes effect." 
 
 The act became a law on the 23rd of March, 1896. The 
 premises in which the respondents are carrying on their traffic 
 in liquors under said certificate had been used as a hotel for 
 fifteen or twenty years and had been leased to one of the 
 respondents for that purpose about four years prior to the 
 passage of said act. Fogarty had been in continuous possession 
 thereof for that purpose up to the time respondents made appli- 
 cation for said certificate; with the exception of the months of 
 June and July, 1896, during which the hotel was temporarily 
 closed. There is no dispute as to the fact that in March, 1896, 
 the respondent Fogarty occupied the premises in question as a 
 hotel. And this fairly brings the respondents within the pro- 
 tection of the proviso in subdivision 2 of section 24 of said act. 
 
 The contention of the petitioner's counsel that the answer 
 of the respondents to the tenth question in the application cannot 
 be true, if the answer to the fourth is correct, or vice versa, 
 proceeds upon the narrow and extremely technical construction 
 that the said fourth answer means that the applicants intended 
 to carry on no other business upon said premises than that of 
 traflScking in liquor. It seems to us that the application must 
 be read as a whole. The fourth question and answer must be read 
 and construed in connection with the third, which describes the 
 property and the purposes for which it is designed to be used. 
 Tested by this rule the answer to the fourth question cannot be 
 said to have been false, any more than is the answer to the tenth 
 so far as said answer is predicated upon the character of the 
 business to be carried on in said premises. 
 
 The remaining question for consideration is whether the 
 seventh interrogatory in said application was truthfully 
 answered and whether the consents required by subdivision 8 of 
 section 17 of said act were duly filed. Said interrogatory and 
 answer are as follows: 
 
 "7. Is the nearest entrance to the described premises within 
 two hundred feet of the nearest entrance to a building or build- 
 ings occupied exclusively for a dwelling, and if so how many 
 owners are there of such building or buildings? Yes. Three 
 (3) owners." 
 
170 Decisions Relating to 
 
 Said subdivision 8 of section 17 requires the filing simul- 
 taneously with the application of the consents of at least two- 
 thirds of the owners of the buildiMj;s occupied exclusively as 
 dwellings within said prescribed distance of two hundred feet. 
 
 The petitioner charges that this answer to the seventh interrog- 
 atory above quoted was false in two particulars. First, because 
 there were more than three buildings within said prescribed 
 distance of two hundred feet which were occupied exclusively 
 as dwellings; and second that one of the buildings within said 
 distance, the owner of which executed a consent, was not occupied 
 exclusively as a dwelling and that in either event, the consents of 
 the requisite two-thirds of such owners have not been executed 
 and filed, as required by law. We have, in the discussion up tf> 
 this point, given to the language of said act what we believe 
 to be a fair and reasonable interpretation. The application of 
 the same rule to the question whether the consents i-e(niiied by 
 subdivision 8 of section 17 were filed, leads us to conclude that 
 the provisions of the law in this behalf were not complied with. 
 
 The building marked "vacauf upon the uiap introduced in 
 evidence is a two-story structure, the first floor of which is 
 designed for and usually occupied as a store, and the upper floor 
 of which is adapted for residence purposes. 
 
 The store A\as actually vacant at the time of the application 
 by the res]ioudents for their certificate; the upper floor was 
 occupied by one Boltwood and his sous as a dwelling. The 
 statute requires the filing of the consents of at least two-thirds 
 Of the owners of buildings occupied exclusively as dwellings, 
 the nearest entrances to which are within two hundred 
 feet of the nearest entrance to the premises described in 
 the statement as those in which the traffic in liquor is 
 to be carried on. The building is concedt>dly within the 
 prescribed distance of two hundred feet. The only question 
 to be determined, therefore, is whether it is a building occupied 
 exclusively for a dwelling within the meaning of the statute. In 
 a strictly literal sense the said building was, at the time the act 
 went into effect, occupied exclusively as a dwelling. But this 
 language should not be given its narrowest and most technical 
 interpretation. It should be read in the light of the spirit of the 
 statute. The obvious purpose of this provision is to prohibit the 
 sale of liquors ^\'ithin two hundred I'eot of dwelling houses unless 
 the consents of at least two-thirds of the owners thereof 
 
LiQuoE Tax Law 171 
 
 are obtained and filed. When this is done, the protest of 
 the owner who does not consent is in vain. But when this 
 is not done, the nonconsentint; owner or any other citizen, 
 may assail the validity of the certificate under which the trafiic 
 in liquors is carried on. This provision of the statute must, there- 
 fore, be held to refer not to the momentary use to which any 
 bnildiuii- within said prescribed distance of two hundred feet may 
 be put, but to its general use, adaptation and construction. A 
 buildinii comaining a number of stores may, upon a given day, 
 have a single occupant who uses a room for a dwelling; such 
 occupancy would not, however, determine the character of the 
 building in which his room is located. It would be a business 
 building still and usually occupied as such. A building derives 
 its character and designation from the usual and ordinary pur- 
 poses for which it is used. This building occupied by Boltwood 
 was designed for and usually used as a store and dwelling and 
 was, therefore, not occupied exclusively as a dwelling. 
 
 Taking this building out of the category of dwellings within 
 two hundred feet of the nearest entrance to the respondents' 
 place of business and treating the signature of Jacobs as a nullity, 
 it follows that if respondents' answer to the 7th interrogatory 
 were true, that the consents required by the statute have not 
 been filed, and that the respondents are not entitled to hold said 
 certificate. 
 
 It is not contended that the sale of liquoi's was actually law- 
 fully carried on in the premises of respondents at the time when 
 said act took effect, and they are, therefore, not protected by the 
 exception or proviso contained in said subdivision 8 in section 17. 
 it will be observed that this exception is not as broad as that 
 contained in subdivision 2 of section 24 with regard to churches 
 and school houses. The latter applies to a place which was 
 occupied as a hotel or in which the sale of liquor was actually 
 lawfully carried on when the act took effect; the former only 
 applies to places in which the sale of liquor was actually lawfully 
 carried on when the act took effect. 
 
 The premises of Wilbur are concededly within the two hundrea 
 feet limit, and the only ground upon which his consent could be 
 deemed unnecessary is that respondent had, without his. the 
 consents of Iwo-thirds of the owners required by the statute. As 
 we have taken the position that the premises occupied by Bolt- 
 wood were not occupied exclusively as a dwelling it would not 
 
172 DucisioNS Relating to 
 
 be iiecessnv.v to further discuss the merits of this application, 
 except for the possibility that our view of this question may hn 
 erroneous. 
 
 ^^'e will, therefore, consider the claiui that there were other 
 dwellings within said statutory limit, which were occupied 
 exclusively as dwellings. The evidence discloses that to the nortli- 
 west of respondents' premises and in an adjoining lot there are 
 two dwelling houses owned by one Gallup, whose consent was 
 not obtained. Measured by the most direct means of commuHica- 
 tion between said two dwellings and respondents' premises, the 
 nearest enli;intes urc within two hundred IVet of each other, but, 
 measured according to the route which would ordinarily be taken 
 by persons ixo\\\g from the premises of one to the premises of the 
 other, the distance would be more than two hundred feet, ^^'e 
 lia\e carefully considered this branch of the proceeding and were 
 at first inclined to the view that the measurements should oe 
 made according to the loute which would be taken by iiersons in 
 the ordinary course of communication between two points but, 
 upon reflection, we are cimstrained to hold that this rule would 
 ■be so uncertain and inijiracticable as to nullify in many cases 
 the purpose of the statute in this regard. The only certain 
 satisfactory method by which measurements can be made is to 
 l>ii)eeed in a diiect line between the two objective points. This 
 may seem to hi', in specific cases, a harsh and even an 
 unreasonable rule, but it is the only one which is consonant 
 with tlie sj)irit of 1lie statute and under which an unvarying test 
 can be a|i|)lied. This \iew is sustained by decisions construing 
 similar statutes. Commonwealth v. Lyres (143 IMass. oTT) ; State 
 V. Grecnway (92 Iowa, 475) ; State v. Ex. Coinvs. (."0 N. J. 411.1 
 There is still anoHiei- question which bears upon this feature 
 of the case. Assuming that the true rule of measurement from 
 nearest entrance to nearest entrance is along the usual or 
 ordinarily used path, it is contended by the relator that there are 
 entrances to the rear end and west side of respondents' hotel, 
 which, according to any method of measurement, bring the nearest 
 entrances to the Gallup dwellings within two hundred feet of the 
 nearest entrances of respondents' hotel. If the doors in the rear 
 end and on the west side of said hotel are now entrances within 
 the meaning of the statule, then it must be conceded that this 
 contention is sound. The evidence discloses that before the 
 respondents made their application for the certificate herein, the 
 
Liquor Tax Law 173 
 
 knobs were taken off of said door, and the doors were nailed up 
 with ten penny nails, and have at all times remained so. We 
 are inclined to the view that these doors are still entrances within 
 the fair meaning of the statute. Any method of closing entrances 
 which can by slight effort and without general observation, be 
 changed, Avould throw upon the authorities charged with the 
 enforcement of this law the duty of constant surveillance of each 
 licensed place having such a "closed" entrance. This would be 
 subversive of the letter as well as the spirit of the law. A loose 
 construction of the statute in this regard would encourage every 
 form of evasion and subterfuge which the ingenuity of 
 unscrupulous men could devise. 
 
 In the matter of R. H. Macy to compel the granting of a 
 storekeeper's license, it was held by the Appellate Division of 
 the First Department, Williams, J. writing the memorandum, 
 that a " 'door' not walled or boarded up, but merely closed 
 and locked" * * * "was still an entrance within the statute 
 as fairly construed." In the present proceeding it appears, as 
 stated, that the door knobs had been removed and nails had been 
 driven into the doors to fasten them. But the nails could be 
 drawn and the knobs replaced with very slight effort; and we 
 think that a fair construction of the statute requires us to hold 
 that these doors "are entrances still." 
 
 We conclude, therefore, that the certificate herein was obtained 
 upon material statements in the application that were false, and 
 that the respondents are not entitled to hold said certificate. Let 
 an order be entered revoking and cancelling said certificate. 
 
 Upon the subject of an allowance of costs and disbursements 
 to the petitioner, we desire to say that the disbursements seem to 
 be unnecessarily large. There is, of course, no doubt that these 
 disbursements have been actually incurred. But the item of 
 stenographer's fees, for instance, is one which should not be 
 allowed in such a proceeding except upon the stipulation of the 
 parties. To allow disbursements in an amount equal to the costs 
 of an ordinary action would make the proceedings unduly 
 oppressive. For these reasons the allowance of costs and disburse- 
 ments to petitioner is limited to fifty dollars. 
 
174 Decisions Relating to 
 
 County Court, Monroe County, April, 1897. Unreported. 
 People v. Carl Beedb. 
 
 Sutherland, J. Demurrer to an indictment found by the 
 grand jury of Monroe county, charging the defendant with mis- 
 demeanor for violation of the Liquor Tax Law, by the sale of 
 fermented and malt liquors on Sunday, July 12, 1896, at the city 
 of Rochester. 
 
 The iudictraent consists of three counts. The first count reads 
 ;is f(iil(iA\s: "The grand jury of the county of Monroe by this 
 indictment accuse Carl Brede of the crime of misdemeanor, to wit: 
 A violation of section .31 of chapter 112 of the Laws of 1896 of the 
 State of New York, entitled 'An act in relation to the traflBc in 
 li(|iiois. and for tlie taxation and regulation of the same, and to 
 provi(]e for local option,' constituting cliapter 2!) of the general 
 laws, committed as follows; The said Carl Brede on the twelfth 
 day of July, in the year of our Lord one thousand eight hundred 
 and ninety-six, at the city of Eoclioster, in this county, willfully 
 and unlnwruUy did offer and expose for sale fermented and malt 
 liquors, in quantities of less than five gallons at a time, to be 
 drunk on tlie ]3remises, on the first day of the week, commonly 
 called Sunday, to a person whose name is to this grand jury 
 unknown, and can not, therefore, be given, said person not being 
 a guest of a hotel then and there kept by the said Carl Brede, 
 contrary to the form of the statute in such case made and 
 provided, and against the peace of the people of the State of Xew 
 York and their dignity." 
 
 The second count is similar to the first in all respects except 
 that it charges that Brede on said <lay at said city of Rochester 
 "willfully and unlawfully did sell and deliver fermented malt 
 liquors * ■■ * to a person whose name is to this grand jury 
 unknown." 
 
 The third count is similar to the first and secon:l in all respects, 
 except that it clinrges that said Brede on said day and at said 
 city, "willfully and unlawfully did give away and deliver- 
 fermented .nnd malt liquors * * * to a person whose name 
 is to this grand jury unknown." The second and third counts 
 respedively contain, also, an allegation that the act charged is 
 the same complained of in the first count. 
 
 The defendant demurs to the indictment upon the following 
 
Liquor Tax Law 175 
 
 groiinds: First, that the grand jury by which the indictment is 
 found have no legal authority to inquire into the crime charged, 
 by reason of its not being within the local jurisdiction of the 
 county. Second, that the indictment does not conform 
 substantially to the requirements of sections 275 and 276 of the 
 Code of Criminal Procedure. Third, that more than one crime is 
 charged in the indictment within the meaning of sections 278 and 
 279 of the Code of Criminal Procedure. Fourth, that the facts 
 stated do not constitute a crime. Fifth, that the indictment con- 
 tains matter, which, if true, would constitute a legal justification 
 or excuse for the acts charged or other legal bar to the prosecution. 
 
 This indictment and three others, charging the defendant with 
 misdemeanors committed by the sale of liquor on Sunday, were 
 fouud by the grand jury, which was convened in connection with 
 the September, 1896, Trial Term of the Supreme Court. The grand 
 jury which was convened in connection with the January, 1897, 
 Trial Term, found seven additional indictments against Brede, 
 charging him with misdemeanor, committed by the sale of liquors 
 on other Sundays, and the last seven indictments are similar in 
 form and phraseology to the first four which have been described, 
 except that in the second and third counts of the indictment found 
 by the January grand jury there is no allegation to the effect that 
 the offense complained of arises out of the same act described in 
 the first count. 
 
 When the defendant was arraigned he filed a demurrer to each 
 of the eleven indictments above described, and each demurrer is 
 based upon the same ground. A large number of other persons 
 were indicted by said grand jury, the indictments in each cast- 
 being similar in form to the latter Brede indictments, and counsel 
 for said other indictments have filed demurrers to said indict- 
 ments similar in form to the demurrers taken to the Brede 
 indictments. By consent, these demurrers have been argued 
 together, as tlie questions to be passed upon seemed to affect and 
 be decisive of all cases alike. 
 
 Pomeroy P. Dickinson, for defendant Carl Brede; Thomas E. 
 White, Philetus Chamberlain, William H. Sullivan, H. C. Spurr, 
 William H. Beach, Charles L. McDowell, George V. Pleckenstein, 
 Louis H. Jack, Charles F. A. Young, Irving Paine, and Delbert 
 C. Hibbard, counsel for other defendants. 
 
 George D. Forsyth, District Attorney, for the people. 
 
17(i Decisions Relating to 
 
 SUTHERLAND;, Co. J. The flrst objection taken to the indict- 
 ments is a denial of the jurisdiction of the grand jury to inquire 
 into the oflfense and to present an indictment therefor; that the 
 only statute under which the defendants could be punished for 
 the illegal sale of intoxicating liquors on the day mentioned in 
 the indictments is the Liquor Tax Law of 1896, under which the 
 grand jury, by express words, is given jurisdiction over the 
 ofEense. The Liquor Tax Law in this respect supersedes as to 
 this class of misdemeanors that section of the charter of the city 
 of Koehester, as amended by chapter 204, Laws of 1893, giving 
 to courts of special sessions held by the police justice of said city, 
 exclusive jurisdiction to hear, try and determine all charges of 
 misdemeanor committed within the city of Rochester. 
 
 The second olijcction is believed to be untenable and not 
 seriiius enough to require discussion. 
 
 The third ground of the demurrer is that more than one 
 crime is charged in the indictment. This objection cannot be 
 charged against the first four Brede indictments because in 
 each one of them is contained the allegation that the third 
 aud fourth counts refer to the same transaction set forth iu 
 the first count, nor are the other indictments which do not contain 
 such an allegation ti> be set aside for that reason. It is plaiu 
 that the grand jury have intended to charge but one offense in 
 eacli separate indictment, and in the three counts of the indict- 
 ments have set forlli three different ways in which the same 
 offense is charged 1(i have been committed. First, by exposing 
 for sale; second, by a sale and deli\'evy; and third, by the giving 
 away of the same liquor to the same person. 
 
 This form of ]ileading is jtermissible. Code of Criminal Pro- 
 cedure, § 270. The indictment is drawn so as to meet the 
 evidence as it may be brought out upon the trial, and if it 
 should appear that the transaction was an offering or exposing 
 for sale, the first count would be appropriate; if it amounts to 
 a sale and de^i^•ery, the i)eople will stand upon the second count; 
 and if it shall apjtear to be the giving away of the liquor, the 
 thiril count will suffice. The pleading is undoubtedly proper, 
 if the different counts refer to the same transaction. People r. 
 Charbineau, 11. ^i N. Y. 4:i.'l; People r. Wilson, 1.^1 N Y. 403. Iu 
 People V. Harmon, 40 Hun, .'').^.8, the demurrer was sustained 
 because the flrst count chai'ged an unlawful sale upon one day 
 and the second count an unlawful sale upon different days. 
 
Liquor Tax Law 177 
 
 But Judge Haiglit, in writing the opinion of the General Term, 
 says : "It would have been competent to have charged that the 
 offense was committed on Sunday, the 26th day of February, by 
 the selling of intoxicating liquors, and to have charged in the 
 second count the same offense at the same time by the giving 
 away of intoxicating liquors." 
 
 It is urged with particular insistence that different trans- 
 actions are referred to, because it does not appear that the 
 unknown person to whom the liquor is said to have been offered 
 for sale, in the first count, is the same unknown person to whom 
 it actually was sold and delivered as charged in the second 
 count. 
 
 But the indictment is not demurrable for the misjoinder of 
 two distinct offenses unless "it appears upon the face thereof 
 * * * that more than one kind is charged in the indictments." 
 Code of Crim. Proc, § 323. It does not appear upon the face 
 of the indictment that different persons are referred to ; and 
 the fact that the indictment fails to state affirmatively that the 
 unknown person in one count is the same person referred to iu 
 the other counts does not make the indictments demurrable. If 
 any presumptions are to be indulged in, we must assume that 
 the same person was intended to be referred to rather than 
 different persons. * People v. Adams, 17 Wend. 435. 
 
 There is no force in the objection that the facts stated in the 
 indictment do not constitute a crime for the reason that the 
 name of the purchaser of the liquor is not stated. It is enougii 
 that the indictment contains an averment that the name of the 
 purchaser is to the grand jury unknown. People v. Stone, 85 
 Hun, 130. 
 
 It has also been urged upon our attention with much earnest 
 ness by counsel for the many defendants who were represented 
 on the argument of these demurrers that it may be legitimately 
 inferred from the language of the indictment that in each case 
 the purchaser of the liquor was a guest at the hotel kept by the 
 defendant, and that in order to set forth a crime the indictment 
 should contain the further allegation that the liquor was served 
 to the guest neither with his meals nor in his rooms or apart- 
 ments therein. In this connection it is also insisted that every 
 indictment for the illegal sale of liquor on Sunday in order to 
 be valid must contain a negative averment to the effect that 
 the sale was not to one of that class of persons called guests and 
 12 
 
ITS Decisions Relating to 
 
 was not made in one ol the ways in which sales to guests are per- 
 mitted on Sunday by the words of the Liquor Tax Law, namely, 
 "\Mth their meals, in their rooms, or apartments therein, but not 
 in the barroom or other simihir room of such hotel." Liquor Tax 
 Law, § 31. But, in my opinion, it is not necessary for the indict- 
 ment to contain a negation covering the exception created by 
 the statute in favor of a hotel keeper in selling to a guest with 
 his meals or in his apartments. The statute contains in section 
 ol, first of all, a general prohibition upon the selling, exposing 
 for sale or giving away of intoxicating liquors by any person on 
 Sunday. The particular clause in which this enactment occurs 
 contains no qualifications whatever. At the end of section 31 
 two exceptions are separately noted; first, that the general pro- 
 hibition thereinbefore enacted shall not prevent a regularly 
 licensed pharmacist from selling liquor under certain circum- 
 stances upon the prescription of a physician, and, second, shall 
 not prevent a hotel keeper who is a holder of a liquor tax cer- 
 tificate from selling liquor to his guests with their meals or in 
 their rooms or apartments. The exceptions are not interpolated 
 into the body of the clause enacting the general prohibition; 
 therefore it becomes the duty of the defendant to bring within 
 the exception, and the indictment need not state that he is not 
 within the excepted class. In Bishop's New Criminal Practice, 
 volume' 1, section 63.5, it is said : " If there is an exception in 
 the enacting clause the party pleading must show that his adver- 
 sary is not within the exception, but if there be an exception 
 in a subsequent clause or subsequent statute, it is a matter of 
 defense and is to be shown by the other party." Authorities are 
 al>nn(lant in support of this proposition. "N^'harton's Criminal 
 Law, vol. 1, §§ 37S. 3S(I; Am. cV: Eng. Ency. of Law. vol. 10', 
 p. 575 ; .Jefferson v. The People, 101 N. Y. 19. There appears to be 
 no more reason for negativing the fact that the sale was made 
 by a hotel keeper to his guest than that the indictment should 
 state that the sale was not made by a pharmacist upon prescrip- 
 tion. 
 
 But the defendants claim that each indictment contains 
 what amounts to an admission that the purchaser of the 
 liquor was a guest at a hotel kept by the defendant; aaid 
 this contention is based upon the supposition, which the 
 defendants put for^xard as sound law, that every time a.ny person 
 buys a drink of liquor at an inn, by that act alone he enters into 
 
Liquor Tax Law 179 
 
 the relation of a guest of the house, and the opinion of the 
 Dehiware General Term of the Supreme Court in McDonald v. 
 Edgerton, 5 Barb. 560, is relied upon as authority for the 
 proposition contended for. But neither the facts of that case nor 
 the opinion of the court gives support to the position of the 
 defendants" counsel. The plaintift' McDonald sued the defendant, 
 an inn keeper, for the value of an overcoat, and evidence was given 
 on the part of the plaintiff to prove these facts. That the plaintiff 
 stopped at defendant's inn on "General Training Day," soon after 
 seven o'clock in the morning, took off his overcoat, gave it to the 
 b:u'keeper and then bought liquor at the bar, for which he paid; 
 on returning to the hotel later in the day the overcoat was 
 missing ; and the action was brought for its value by the plaintiff 
 under the claim that he was a guest of the hotel. The evidence 
 offered by plaintiff's witnesses as to the receipt of the coat by 
 defendant's barkeeper was contradicted by defendant's witnesses, 
 but purchase of liquor was not denied. 
 
 The jury in the justice's court where the case was tried 
 rendered a verdict for the plaintiff ; the judgment entered thereon 
 was reversed by the Delaware County Court and an appeal taken 
 from the judgment of reversal to the General Term. The Supreme 
 Court held that whether the plaintiff was a guest or not was a 
 question of fact that had been determined by the jury upon 
 conflicting evidence, and reiterated the familiar rule that where 
 there is a conflict of evidence upon a trial in a justice's court, 
 so far as all questions of fact are concerned, the verdict of the 
 jury is conchisive and can not be reviewed elsewhere, however 
 much the verdict may be against the weight of evidence; and, 
 accordingly held that it ^'as error for the County Court to reverse 
 the judgment, there being some evidence, at least, that the relation 
 of landlord and guest actually existed between the plaintiff and 
 defendant. 
 
 The Supreme Court did not hold, nor mean to say. that in all 
 cases the mere purchase of liquor at an inn constitutes the pur- 
 chaser a guest, and when Judge Mason says, after discussing the 
 evidence, that "purchasing of the liquor was enough to constitute 
 the plaintiff a guest," he means to be understood as holding that, 
 assuming the evidence given by the plaintiff's witnesses as true, 
 the purchase of liquor by the plaintiff in connection with the 
 previous act of the barkeeper in taking his goods in custody was 
 sufficient in that particular case to warrant the verdict of the 
 
180 Decisions Relating to 
 
 jury. Counsel now insists that the court intended to hold that 
 as a matter of law the purchase of the liquor established plaintiff's 
 status as a guest. But in the opinion Judge Mason repjeatedly 
 asserts that whether he became a guest or not was a question of 
 fact which the jury had to decide upon disputed evidence and 
 not a question of law. The purchase of the liquor was conceded ; 
 consequently the Supreme Court could not have believed tht 
 purchase of the liquor to be conclusive upon the question of the 
 plaintiff's relation as a guest of the inn. McDonald v. Edgerton 
 is frequently referred to in the later reports, sometimes as an 
 authority for the rule that an appellate court can not reverse a 
 justice's decision because it is against the weight of evidence 
 (Adsit V. AVilson, 7 How. 64) ; and often upon the general liability 
 of a hotel keeper for the loss of the goods of his guest ; and else- 
 where as authority for the proposition that the shortness of the 
 stay of a guest at a hotel is immaiiterial in determining the 
 liability of the landlord, but I have found no instance where 
 McDonald v. Edgerton is referred to as holding that the purchase 
 of liquor alone as a matter of law constitutes one a guest at an 
 inn. It perhaps may be claimed that in Pairchild v. Bentley, 30 
 Barb. 147, tlie court seems to consider McDonald i'. Edgerton 
 authority for such a proposition. 
 
 But in Fairchild v. Bentley the person whose relation to the 
 hotel as a gnest was discussed, came to the hotel with his team, 
 and the hostler pointed out the place where the team might be 
 hitched under the shed, and then the driver went into the hotel, 
 purchased liquors and cigars, "and," says the opinion, "thus 
 became a guest of the house." Citing McDonald r. Edgerton. 
 But the words "thus became" refer not only to the purchase of 
 the liquor but to the putting up of the team with the consent of 
 the hostler; and, furthermore, what was said upon that subject 
 in Fairchild v. Bentley was obiter dictum, because the judgment 
 of the lower court was reversed upon another ground, which the 
 court says (at page 156) was fatal to the judgment whether the 
 visitor at the hotel was a guest or not. 
 
 On the other hand, it was expi(^ss1y held in Fitch v. Casler, 17 
 Hun, 126, by the General Term of the third department that 'the 
 pur.hase of liquor at an inn does not necessarily constitute the 
 purchaser a guest of the hotel. In that case the plaintiff went 
 to defendant's hotel to attend a dance for which invitations 
 had been sent out by the hotel proprietor. The dance ticket 
 
Liquor Tax Law 181 
 
 purchased by plaintiff covered the night's supper, paiy for 
 plaintiff's horse and admission to the dance hall. The plaintiff 
 also purchased drinks and cigars, but the court held that the 
 relation of the innkeeper and guest did not exist because the 
 plaintiff did not go to the hotel for the purpose of receiving the 
 entertainment which a hotel extends to the public. Judge Learned 
 in the opinion says: "The well-known principle of the liability 
 of an innkeeper has been maintained in order to protect those 
 who go to his house as to an inn or hotel." And, again, "It ie 
 true, as urged by the plaintiff', that even the purchasing of liquor, 
 has been held sufficient, under some circumstances, to make one 
 the guest of the innkeeper. This shows that it is not the amount 
 of refreshments, but the character under which the purchaser 
 buys them, which determines the relation of the parties." 
 
 In Carter v. Hobbs, 12 Mich. 52, under somewhat similar cir 
 cumstances, it was held that the plaintiff was not a guest of the 
 hotel, although the plaintiff purchased liquor and cigars ; and the 
 courts say : " To hold the defendant liable as an innkeeper, it must 
 appear not only that the defendant kept the inn and that the 
 goods were lost there, but that he was acting in the capacity of 
 an innkeeper on the occasion when the goods were received ami 
 that the plaintiff was his guest; or, in other words, that the 
 plaintiff visited the inn for the purposes which the common law 
 recognizes as the purposes for which inns are kept." In Queen 
 V. Rymer, 2 Law Eep. Q. B. D. 136, the court for crown cases 
 reserved held that a person residing in the same town where a 
 hotel is situate, entering the bar-room of a hotel intending 
 merely to purchase a drink, does not become by such purchase 
 a guest of the hotel. In Ingalsbee v. Wood, 36 Barb. 452, Judge 
 Potter (at page 46) says the word "guest" seems to mean 
 one who relies upon or adopts the inn as his home for the 
 time being, though the length of time which the guest remains, 
 it seems, will not affect his right as such, provided he lives there 
 in his transitory character as a guest. In Castenhofer v. Clair, 
 10 Daly, 265, the court says: "It is not the fact that a person 
 does or does not take lodging or partake of refreshment in an 
 inn that makes him a guest ; it is the motive with which he enters 
 the place, whether to use it for the briefest period or the most 
 trifling purposes as a public house or not." 
 
 The Revised Statutes, part 1, chap. 20, art. 8, §72 (passed in 
 1827), provided that no keeper of an inn or tavern authorized 
 
lyi; Decisions Relating to 
 
 to retail spirituous liquors should on Sunday sell or dispose o£ 
 them except "to lodgers in such inns or taverns or to persons 
 actually traveling on that day, in the cases allowed by law." 
 And this was the reenactment of a previous statute. In the 
 act for the regulation of the liquor traflflc, passed in Is.jT, the 
 wording of the former provision was not retained, but if was 
 provided that "no tavern or hotel-keeper * * * shall sell or 
 give away intoxicating liquors or wines on Sunday * * * to 
 any person whatsoever, as a. beverage." But in the matter of 
 Breslin, 45 Hun, l-'lU, it was held by the General Term of the 
 first department that the Legislature did not intend by the act 
 of 1S57 tu prohibit an innkeeper from selling liquor to lodgers 
 or quests of tlie inn as such, but only designed to prohibit the 
 indiscriminate sale of intoxicating liquors by him to the general 
 public on that day. The Excise I^aw, passed in 1892, contained 
 an ex])ress permission for the sale of liquors on Sunday by the 
 holder of an innkeeper's license "to guests of such hotel * * « 
 to be drunk Ijy the purchaser in the inn, tavern or hotel thereby 
 licensed, with his meals or in his rooms or apartments therein, 
 but not in the barroom or other similar room of the inn, tavern 
 or hotel licensed." 
 
 The Liquor Law commonly called "The Raines Bill" differs 
 in no material respect from the Excise Law of 1892 as to the 
 sale of liquor to a guest l>y a hotel-keeper, and it seems probable 
 that the Legislature, in passing both the Excise Law and the 
 Liquor Tax Law, intended to leave the matter substantially as 
 it had been ever since the enactment of the Revised Statutes; the 
 w(jrds lodgers or travelers contained in the Revised Statutes, 
 and used by the courts in construing the act of 1S.57. being 
 replaced by the word guest in the Excise Law of 1S92 and the 
 Liquor Tax Act of 1896. 
 
 In my opinion, the class of persons to whom such sales on 
 Sunday may lawfully be made has not been enlarged by the recent 
 legislation, and it is not now iievniissible for a hotel-keeper to 
 sell to any person unless that person occupies towards his house 
 the peculiar relation of guest; unless the purchaser has come to 
 tlie hotel to receive that protection, hospitality and entertainment 
 which inns have always afforded and which under the law they 
 are obliged to afford to their guests. A person strolling by 
 tlie entrance of a hotel, who chances to turn in and buy a 
 drink, does not thereby become in ray opinion a guest within the 
 
LiQuoE Tax Law 183 
 
 meaning of the term in the Liquor Tax Law. Something more 
 must take place ; there must be an intention on his part to adopt 
 the inn for the time being, whether long or short, as his abiding 
 place; he must have come infra liospitium and be received by 
 the innkeeper in the capacity of a guest and be considered more 
 than a mere purchaser of liquors and cigars, which the inn- 
 keeper offers for sale to the general public indiscriminately in the 
 same manner as they are offered for sale by any other person 
 authorized to sell the same. 
 
 The claim made by the defendants that the allegations in these 
 indictments of the purchase of liquor of the defendants, who are 
 hotel-keepers, is equivalent to the admission that the purchaser 
 was a guest, cannot be sustained and the demurrers must be 
 disallowed. 
 
 Supren-.e Court, New York Special Term, May, 1897. Unreported. 
 
 People v. Ethel Gerard. 
 
 People v. Patrick McMahon. 
 
 Andrews^ J. Upon the complaint of a police officer, charging 
 her with having sold wine without first having obtained a liquor 
 tax certificate, the defendant, Ethel Gerard, was arrested under 
 a warrant issued by a city magistrate, and held for trial at the 
 Court of Special Sessions. The defendant, McMahon, being the 
 holder of such tax certificate was arrested on a charge of having 
 violated section 31 of the amended Liquor Tax Law (the Raines 
 law) and was held for trial at the same court. Applications are 
 now made to me on behalf of both defendants for orders trans- 
 ferring their cases to the Court of General Sessions, which appli- 
 cations are opposed by the district-attorney. The claim made on 
 behalf of both defendants is that the court has no discretion in 
 the matter, and that their right is absolute to have their cases so 
 removed to a court where they cannot be placed on trial until 
 and unless they have been indicted by a grand jury and where 
 they will be entitled to a jury trial. In view of the publl<; 
 importance of this matter I have given it very careful consider- 
 ation, and have reached the conclusion that these applications 
 must be granted. 
 
184 Decisions Eelating to 
 
 By the provisions of subdivision 1 of section 35, above quoted 
 (same law) proceedings lor tlie ])unishment of most of the 
 violations of the provisions of the act must be jjrosecuted by 
 indictment by a grand jury and by trial in a court of record 
 having jurisdiction for the trial of crimes of the grade of felony. 
 This provision applies to every portion of the State except tin,' 
 city of New York, and but for the amendment of this year, 
 contained in said section ;J5a, would apply to the city of New 
 York. If it did so apply it would necessarily follow that persons 
 charged with violations of the act in the city of New York, except 
 in cases covered by subdivision 2 of section 34, would have to be 
 prosecuted and tried in the criminal branch of the Supreme 
 Court, or in the Court of General Sessions. In view of the great 
 number of persons charged with offenses of the grade of felony 
 who are indicted and tried in those courts and of the great 
 numln'r cit prosecutions instituted dui-ing the past year in the 
 city of New York under the Liquor Tax Law passed in 1S06. it 
 may be fairly presumed that the object of the Legislature in 
 adopting the amendment contained in section 35a was not to 
 dejtrive persons arrested in the city of New York of the right to a 
 trial by jury, which is given to defendants so prosecuted in 
 every other part of the State, but to relieve the higher courts and 
 provide a method for the speedy trial, without a jury, for ail 
 persons prosecuted for violation of the Liquor Tax Law, who 
 should not elect to exercise the right of removal to the higher 
 court given by the said act of 1895. 
 
 * * * » « 
 
 To construe section 35a as depriving persons arrested for a 
 violation of this statute in the city of New Y^'ork of a jury trial 
 is, therefore, to impute to the legislature the intention of giving 
 to defendants in every other part of the State the right to a jury 
 trial, but of depriving all persons prosecuted in the city of New 
 York for violations of the same law of that valuable right. The 
 court will not impute to the legislature the intent to jiass a law 
 which would be so unequal, oi)pressive and unjust. In this State 
 and throughout the United Slates, the right to a trial by jury 
 in criminal cases is one of the most dierished rights of the 
 citizen, and is embedded in the constitution of every State, and 
 of the United States and the court sluuild not construe an act 
 of the legislature as depriving a defendant of such right, 
 unless the intention to do so is expressed in the clearest 
 
Liquor Tax Law 185 
 
 and most unmistakable terms; and especially should the 
 
 the court not hold that the legislature has discriminated 
 
 against persons engaged in the liquor traffic in New York 
 
 city, by depriving them of the right to a trial by jury, 
 
 when all persons convicted of a violation of the Liquor Tax Law 
 
 and sentenced to imprisonment in that city must be confined iq 
 
 the penitentiary, subject to the indignity of wearing a criminal's 
 
 garb, to a discipline nearly as severe as that of the State prison, 
 
 and compelled to associate with the burglars, thieves and other 
 
 criminals of the most hardened and abandoned character, who 
 
 may be imprisoned in that place for terms not exceeding five 
 
 years, under chapter 571 of the Laws of 1875. It seems to me 
 
 clear, from the language used in the statute, and from all the 
 
 considerations above mentioned, that said section 35a does not 
 
 operate to extinguish the right of removal from the Special 
 
 Sessions to the General Sessions, which exists in this city, in the 
 
 case of all other misdemeanors; but, even if the statute is to be 
 
 regarded as ambiguous, and susceptible of being construed either 
 
 as taking away or not taking away such right, I certainly think 
 
 that a just regard for the rights of persons prosecuted under it 
 
 in the city of New York demands that the latter construction 
 
 should be adopted. 
 
 » » * » » 
 
 Lastly, in nearly all statutes passed by the Legislature ol 
 this State, which have conferred jurisdiction upon Courts of 
 Special Sessions, or other inferior courts, to try offenses of the 
 grade of misdemeanors (as are most of the crimes created by the 
 statute in question) special care has been taken to preserve the 
 right of trial by jury, either by express provisions providing for 
 trial by jury therein, or giving defendants an absolute right to 
 have their cases removed to a higher court where criminal 
 proceedings are prosecuted by indictment and trial by jury * * *. 
 The Legislature, however, did attempt in the year 1855, when it 
 passed "An Act for the prevention of intemperance, pauperism 
 and crime," and again in 1857, when it passed "An Act to 
 suppress intemperance, and to regulate the sale of intoxicating 
 liquors" to provide for the summary punishment of certain 
 violations of those statutes through trials by a magistrate without 
 a jury. It was, however, decided by the Court of Appeals that 
 this legislation was a violation of that provision of thf Constitu- 
 tion which declares that the trial by jury in all cases in which it 
 
186 Decisions Eelating to 
 
 has been heretofore tised, sIimII remain inviol;il(^ forever. (Offing 
 cases.) 
 
 If, therefore, sections :'>;■) mid '.',~in of the sl;i1ute in question do 
 in fact deprive persons jiroscculi'd lor the various misdemeanors 
 created by the statute of the riglit of trial l»y jury, the provisions 
 of those sections (under the cases above cited) which have that 
 elfect are plainly unconstitutional. Both applications to remove 
 the cases from the Court of Special Sessions to the Court of 
 General Sessions must, therefore, be granted. 
 
 Supreme Court, Niagara County, May, 1897. Unreported. 
 
 People ex rel. Charles Bedell v. John F. Ivixney. 
 
 Habeas ( '(.npns. 
 
 Godfrey H. AA'ende, for relator. 
 
 Abner T. Hopkins, for respondent. 
 
 White, J. : The relator was convicted of the crime of having 
 sold liquiir without having obtained a liquor tax certificate as 
 required by chapter 112 of the Laws ol lS!)(i, at the December, 
 lS!l(i, term of the County Court of Niagara county. Upon such 
 conviction and on January L';'.rd, 1S'.)7, the said court sentenced 
 the relator to imprisonment in the county jail of Niagara county 
 for j^he term of six months, and imposed a fine of $1,0.50.00 upon 
 the relator and directed that he be imprisoned until the fine was 
 satisfied, not to exceed 1,0."0 days. Following the sentence by 
 the court, and on January 2(;th, 1S07, a siiccial deputy clerk of 
 Niagara county made a written certificate, signed the same and 
 affixed the seal of the court thereto, stating in substance that the 
 relator had been tried and con\irt(>d at the December term of the 
 Niagara County Court, upon an indictment charging a violation 
 of the liquor tax law; that up(m the said conviction the relator 
 had been, on January 23d, ISOT, sentenced to be imprisoned in 
 the Niagara county jail at hard labor for the terra of six months, 
 and to pay a fine of |1,050, or to be imprisoned until the fine 
 should be paid, not to exceed 1,0.50 days; and, further, that it had 
 been proved by salislaclory evidence to the court that the prisoner 
 
Liquor Tax Law 187 
 
 had learned and practiced the trade of a saloon keeper. Said 
 certificate states that it is a true abstract from the minutes of 
 the court in the case in which the relator was so convicted and 
 sentenced. The fine imposed has not been paid. 
 
 At some time after the relator was sentenced and before the 
 writ of this proceeding was served upon the respondent, the 
 relator was, and still remains in the custody of the respondent, 
 and confined in the county jail of Niagara county. It does not 
 appear when the relator was taken into such custody, nor that 
 the respondent took him into custody by virtue of any certificate, 
 mandate or commitment, based upon the sentence of the court; 
 in fact, the respondent disclaimed having taken the relator into 
 custody by virtue of any such certificate, mandate or commitment, 
 but alleges that he took and holds him a prisoner by virtue of 
 the sentence of the court, which was written out by the said 
 judge in his minutes, before being pronounced, and then read 
 as so written out, to the relator. 
 
 The relator insists that he is imprisoned and held in the custody 
 of the respondent solely by virtue of the certificate made by the 
 special deputy clerk above referred to. 
 
 That statute which was violated, by the relator, creates the 
 offense of which he has been found guilty, denominates it a mis- 
 demeanor and commands its punishment by a fine of not less than 
 seven hundred, nor more than two thousand dollars, and m addi- 
 tion to the fine authorizes the court to imprison the offender in the 
 county jail for a term of not more than one year. 
 
 So in that case the court had the right to impose the amount 
 of the fine it has imposed and to imprison for the term of six 
 months. 
 
 The statute made it the duty of the clerk of the court in this 
 case forthwith upon the conviction of the relator to make and 
 file in the office of the clerk of Niagara coimty, a certified state- 
 ment of such conviction and sentence, and thereupon it became 
 the duty of the clerk of the county to enter in the docket book 
 kept by him for the docketing of jiidgments in his office, the 
 amount of the fine imposed upon the relator, viz., $1,050, as a 
 judgment against the relator, and in favor of the State Com- 
 missioner of Excise. The said clerk should also have entered 
 in the docket of said judgment a brief statement setting forth 
 the facts that said judgment was for a fine or penalty imposed 
 for a violation of the liquor tax law, the said clerk should then. 
 
1S8 DecihioiVS Eelating 
 
 and immediately, have mailed or deliveicd to the <J(_)unty Treas- 
 urer of Niagara county, or to the special deputy State com- 
 missioner of excise for that county, a duly certified transcript of 
 said Judgment. At that state of the case the relator \\'as entitled 
 to five days' time after having been sentenced, in which to pay 
 the judgment which should have been no entered against him, 
 before any further proceediuys to collect the judgment could have 
 been taken against him. If at the expiration of said five days the 
 judgment was not paid, it then became the duty of saiil county 
 clerk to issue an execution upon the jndL;iiK'iit t<j the sheriff of 
 said county, whose duty it would then have been to iijllect the 
 executions as executions in civil cases, aii.sing on contracts, are 
 collected. 
 
 The record now before the court fails to disclose a compliance 
 or an,y attempt to comply with the law, concerning the collection 
 of the fine iiniHiscd upon the relator by the court. Instead of doing 
 that the attempt is being made, according to the record before 
 me, to collect the said fine by confining the relator in jail, at 
 the expense of Niagara county, and crediting him a dollar a day 
 for the time he passes in that manner. The two methods are 
 inconsistent. It is a well-settled rule that where a statute creates 
 a crime and prescribes its punishment, no other or different mode 
 of punishment than that so prescribed can be adopted by the 
 court.. 
 
 It is for llicse reasons, that neither section 15 nor ISI of the 
 Code of Criminal Procedure is ajiplicable here, and so it follows 
 in this case that to the extent that the judgment pronounced 
 by the Niagara County Court against the relator commands 
 his imprisonment until the fine imjiosed is jiaid, it is void for the 
 reason that it contravenes the statute in tliat respect. 
 
 The only punishment that could be inflicted under or by virtue 
 of a fine, under this statute is pecuniary and not physical, or by 
 depriving the offender of his liberty. 
 
 While it is not necessary to a proper disi)osition of this branch 
 of the case to pass upon the question tliere would seem to be 
 no reason wliy the steps following the sentence as prescribed 
 by the statute for the collection of the fine may not now 
 be taken, if they have not been. That part of the sentence 
 which inflicts imprisonment I'or the term of six months is clearly 
 authorized by the statute, and no reason is apparent why it 
 should not be carried out. 
 
Lkilor Tax Law 189 
 
 The relator contends that it should not for two reasons; he 
 insists in the first place, that the imprisonment of the relator 
 is by virtue of the certificate made by the special deputy clerk, 
 which has already been sufficiently described and that such 
 certificate is irregular and insufflcient as authority for such 
 imprisonment, and in the next place, that even if the authority 
 for imprisonment for said term of six months be the sentence 
 and not the certificate, the sentence being void in part is void in 
 toto. Neither of these grounds is tenable. 
 
 The sentence, and not the certificate, made by the clerk, ia 
 the authority for the imprisonment for said term of six months, 
 and even though that certificate be as it is, frankly admitted 
 by the respondent to be irregular and not in the form prescribed 
 by law, it may, if necessary, be amended, or a new certificate 
 which will conform to the law, may be made, so long as the 
 judgment which it is designed to describe and exemplify is legal 
 and in due form. {People v. Baker, 89 N. Y. 4G7.) 
 
 As to the second proposition advanced by the relator, there 
 seems to be no reason for holding, nor has any authority been 
 cited to that effect, nor have I been able to discover any that 
 holds the doctrine contended for. That part of the sentence 
 which inflicts the punishment of imprisonment for said term if 
 six months, is clear and distinct, and in no way dependent upon 
 or necessarily connected with the other part of the sentence 
 imposing the fine, and so long as the one part is within the 
 law and is clearly separable from the other, and that other part 
 is unauthorized and void, there would seem to be no good reason 
 why the void part should not be treated as surplusage, and that 
 is what should be done in this case, to the end that there may 
 not be a miscarriage of justice. The relator was duly tried and 
 convicted, and the law authorizes the imprisonment for said 
 term of six months inflicted by the court. 
 
 I am of the opinion that the relator should be remanded to the 
 custody of the sherifi" of Niagara county, and that when he shall 
 have suffered six months' imprisonment he will be entitled tv) 
 be discharged therefrom. 
 
190 Decisions Relating to 
 
 Supreme Court, New York Special Term, Reported. N. Y. L. J., 
 
 June 20, 1897. 
 
 ]n the matter of the application of Henky H. Lyman to revoke the 
 liquor tax certificate of the Young Men's Cosmopolitan Club 
 of New York. 
 
 Beekbian, J.: This is an ap])lication under subdivision 2 of 
 section I'S of chapter 112 of the Laws of ISOO, as amended by 
 chapter 'M'2 of the Laws of 1S07, known as the Liquor Tax Law, 
 under wliich it is sought to (ihtain an order revoking and can- 
 celling the lifpioi- tax certificate which is held by the respondent 
 for certain violations of the statute which are set forth in the 
 moving ]iaiiers. The jirociH-iling is a summary one to be 
 instituted before a Justice or a S|)ecial Term of the Supreme 
 Court, and if the charges made are well founded an order must 
 be made by the justice or court revoking and cancelling the 
 certificate and all right on the part of the holder of the same 
 to eitlier traflic in liquors or to tlie rt'turn of any portion of the 
 tax paid thereon comes to an end. It is claimed by the respondent 
 that this involves a I'orlViture of ]iroperty, and that as no 
 provision is made for Ihe trial of the questions raised before a 
 jury, its constitutional riglits are in that regard invaded and the 
 act in so far as it saiiclions the proceeding in question is 
 unconstitutional. 
 
 The argument in support of this proposition is largely based 
 upon a recent decision of the (_V>urt ot Apjioals (Colon r. Lisk, 
 decided June 8th, 1897). The case relied upon, however, is 
 plainly distinguishable from the one under consideration. There 
 a statute was held to be unconstitutional which provided that any 
 interference by any person with oysters which had been lawfully 
 planted or cultivated in waters of the State by another would 
 not only be a misdemeanor, but that any boat or vessel used iu 
 violation of the act might be summarily seized without process 
 or other authority, and that upon six days' notice to the person 
 in possession and to the owner, if known, a justice of the peace 
 should proceed to take evidence whether the vessel was used in 
 violation of the statute, and if he should so determine, requiring 
 him to order the same to be sold and the avails paid to the 
 Commissioner of Fisheries, Game and Forest. The decision of 
 
Liquor Tax Law 191 
 
 the court was placed upon the ground that the statute was in 
 contravention of the constitutional provision which insures a 
 trial by jury in such a case, and also that the Legislature has 
 no constitutional right to enact a statute forfeiting to the State 
 the property of one person upon the sole ground that he had in 
 some manner interfered with the private rights of another; that 
 the statute there under consideration did not come within the 
 police power of the State, inasmuch as it related neither to the 
 health, morals, safety or welfare of the public, but only to the 
 private interests of a particular class of individuals. 
 
 The Liquor Tax Law is entitled "An Act in relation to the 
 traffic in liquors and for the taxation and regulation of the same, 
 and to provide for local option, constituting chapter 29 of the 
 general laws." The power of the Legislature to pass such an act, 
 even to the extent of prohibiting any such traffic, is now too well 
 settled to admit of any doubt, and finds its sanction in the police 
 power of the State. The certificate, which is the equivalent of a 
 license to traffic in liquors, is property only in so far as such 
 an attribute may be conferred upon it by the terms of the act 
 itself. Section 27 of the act provides that it may be sold and 
 transferred to any person not forbidden to traffic in liquors, upon 
 the making and filing of a new application and bond by such 
 purchaser and the presentation of the certificate to the officer who 
 issued the same, who shall thereupon give his consent to the 
 transfer; but this is coupled with the proviso that no such 
 transfer shall be permitted by any holder of a certificate who 
 shall have been convicted, or be under indictment, or against 
 whom a complaint under oath shall have been made and be 
 pending, for violating the provisions of the act, or who shall have 
 violated any provision of the Liquor Tax Law. By section 25, 
 provision Is made by which a liquor tax certificate may be 
 surrendered and a proportionate rebate of the tax returned, but 
 this right is also conditioned upon a previous compliance with 
 the law by the holder. The same section also, provides that a 
 receiver, assignee, committee or executor or administrator, of a 
 corporation, association or individual to whom such a certificate 
 may have been issued, may continue to carry on the business 
 thus licensed for the balance of the term for which the tax was 
 paid and the certificate given, subject to the same restrictions and 
 liabilities, as if they had been the original applicants for and 
 owners of such certificate. 
 
11)2 Decisions Relating to 
 
 To the extent stated, the certilicate may be regarded as 
 property, but it is i)roperty hedged about with conditions and 
 limitations, and is lield by the person to whom it was issued 
 subject to and qualified by every one of the conditions reierred to. 
 It was accepted by him under an implied agreement that it should 
 terminate in the manner which the statute prescribes if he should 
 be guilty of any of the acts for which it might be cancelled. 
 Whatever rights the certificate conferred are measured by the 
 entire statute, and constitute the residuum after every restriction 
 and condition imposed has been taken into account. A person 
 receiving such a certificate must accept the burden with the 
 benefit; and the right subject to the burden measures the extent 
 of wluit he may claim to be his right of property. The so-called 
 forfeiture therefore, does not curtail a right of property, but is 
 the mere operation of a condition, which in a contractual sense 
 qualified the original grant. 
 
 In the case <>t Colon r. Lisk, the ownership of the oyster boat 
 was absolute and unqualified, and its forfeiture was in no sense 
 whatever associated with the terms upon which the property in 
 it was held. The provisions in the Liquor Tax Law which are 
 here brought into question are undoubted police regulations 
 deemed necessary for the protection of the public interests, and 
 therefore within the competency of the Legislature to enact. The 
 revocation of the license following a violation of the law is a 
 reasonable and necessary exercise of power for the proper 
 regulation of the traflic and for the promotion of the public 
 welfare. The Legislature could not have provided for it without 
 process of law, as that phrase is commonly understood, so that 
 the proceeding which is required to be taken is rather a concession 
 to the principle of fairness than a necessary compliance with 
 the constitutional mandate. 
 
 Without further discussion, I am quite satisfied that the 
 provision of the law which is attacked is constitutional, and that 
 the court has power to entertain this proceeding. In accordance 
 with the understanding upon the argument, the^respondent, may, 
 if it be so advised, interpose an answer to the petition. If this 
 is done at the time the order herein is presented for settlement, a 
 reference will be directed under the statute to take proof of the 
 facts and to report the same to the court, on or before a date 
 which will be prescribed, wlien the hearing will be had at Special 
 Term upon the merits. 
 
Liquor Tax Law 193 
 
 First Appellate Department, June, 1897. Reported. 19 App. DIv. 292. 
 
 The People of the State of New York, Respondent, v. Michael 
 Durante and Giovanni Durante, Appellants. 
 
 A liquor tax certificate is personal property — Surrender and appropriation 
 of the proceeds thereof, after giving a mortgage thereon. 
 
 A liquor tax certificate, issued under chapter 112 of the Laws of 1896, 
 is personal property within the definition of personal property contained 
 in the Statutory Construction Act (Chap. 677, Laws of 1892), and there 
 stated to include "everything except real property, which may be the 
 subject of ownership." 
 
 The surrender of such a certificate by licensees who have executed a 
 chattel mortgage thereon as security for a loan made to them, and their 
 subsequent appropriation to their own use of the rebate received on such 
 surrender, and their refusal to pay the amount of the loan to the 
 mortgagees, constitute a violation of section 571 of the Penal Code. 
 
 Appeal by the defendants, ^Michael Durante and another, from 
 a judgment of the ( 'onrt oi' General Sessions of the Peace in 
 and for the city of New York, rendered on the 1st day of April, 
 1897, convicting the defendants of a misdemeanor. 
 
 John Mitchell, for the appellants. 
 
 John D. Lindsay, for the respondent. 
 
 Patterson, J. The appellants were convicted, in the Court of 
 General Sessions of the Peace of the city and county of New 
 York, of a misdemeanor, for the violation of section 571 of the 
 Penal Code, by which it is enacted that a person "who having 
 theretofore executed a mortgage of personal property, or any 
 instrument intended to operate a.s such, sells, assigns, exchanges, 
 secretes or otherwise disjioscs of any part of the property upon 
 which the mortgage or other instrument is at Ihe time a lien, 
 with intent thereby to defraud the mortgagee or a purchaser 
 thereof, is guilty of a misdemeanor." On the trial of the indict- 
 ment upon which the conviction was had the following facts were 
 admitted by the defendants, viz.: That on the 1st day of July, 
 1896, a liquor tax certificate, mentioned in the indictment, was 
 lawfully and duly issued to Giovanni Durante, one of the defend- 
 
194 Decisions Relating to 
 
 aii(s, to conduct a saloon at Gl James street, New York city, 
 for the term of one year; that on the 17th day of July, ISOG, the 
 d(>fendants executed a chattel mortgage, mentioned and set out in 
 the indictment, to one Giovanni Lombardi, in which mortgagi:: 
 was included the liquor tax certificate; that the mortgage was 
 given to secure the payment of a loan of |400; that on the 30th 
 of July, 1896, the defendants surrendered the liquor tax certifi- 
 cate to the excise department and received a rebate therefrom, 
 which they appropriated to their own use; that prior to the sur- 
 render of the certificate, a demand for the payment of tlie §400 
 was made by the mortgagee upon the mortgagors and not com- 
 plied with, and that the amount remained unpaid up to the filing 
 of Hie indictment. The defendants moved the court, after these 
 admissions were made, that it advise the jury to acquit on the 
 ground that the evidence as ronlained in the admission was of 
 the sale and surrender ol a liquor tax certificate, which was not 
 personal property within the meaning of section 571 of the Penal 
 Code. The motion was denied, and the defense thereupon rest- 
 ing, the case was submitted to the jury who returned a verdict of 
 guilty. 
 
 The only question jiresented by this appeal relates to a liquor 
 tax tertificate being inojierty which may be the subject of a 
 chattel mortgage within the meaning of the section of the Penal 
 (^ode abdve referred to. That section relates specifically to 
 property upon which a mortgage or instrument intended to 
 operate as such is a lien, and, in order to bring the case within 
 that section, that which is the subject of the lien must be some- 
 thing answering tlie description of property and capable of being 
 mortgaged. By the Statutory Construction Act of 1S02 (Chap. 
 G^7j §4), personal property is defined as including "everything, 
 except real property, which may be the subject of ownership." It 
 is a well-recognized rule that anything that may be sold or 
 assigned may be mortgaged. Judge Story says, in his Equity 
 Jurisprudence (§ 1021) : "As to the kinds of property which may 
 be mortgaged, it may be stated that, in equity, whatever property, 
 personal or real, is capable of an absolute sale may be the subject 
 of a mortgage." And in Xclif/h v. j]ric]tcii(ir (3 Stockt. Ch. 542) 
 Chancellor AVilliamson held that everything which is the subject 
 of a contract, or which may be assigned, is capable of being 
 mortgaged. P.y the inclusion of the liquor tax certificate in the 
 articles mortgaged by these defendants to Lombardi, it was 
 
Liquor Tax Law 195 
 
 manifestly intended that, as between the parties to the instrn- 
 meut, that certificate should constitute part of the security for 
 the money loaned. It may be true that, prior to the year 1893, 
 a mere license to sell liquor did not, under the law of the State 
 of New York, constitute property in such a sense as to make it 
 the subject of traiBc by way of sale, or that could be mortgaged — 
 but by the provisions of the Liquor Tax Law of 1896 (Chap. 112) 
 a different status is given, and additional qualities are annexed 
 to a certificate granted under that act, from those which there 
 tofore attached to simple licenses to sell liquor. The certificate 
 is given the characteristics and some essential elements of 
 property, limited and restricted in some respects, but, neverthe- 
 less, constituting a thing of value, over and beyond a mere 
 personal permission to one holding it to conduct or carry on a 
 certain business. Any one may now engage in the traffic (with 
 certain exceptions) who shall pay the license tax and give a bond. 
 {People ex rel. Einsfeld v. Murray, 149 N. Y. 367.) A person to 
 whom a liquor tax certificate is issued may sell, assign and trans- 
 fer such certificate during the time for Avhich it was granted, 
 under certain conditions, limitations and qualifications provided 
 for in the act. If a person holding a liquor tax certificate dies 
 during the term for which that certificate was given, the admin- 
 istrator or executor of the person so dying may surrender the 
 certificate and have refunded the pro rata amount of the tax paid 
 for the unexpired term of the certificate. The same may be done 
 by a receiver or assignee of a corporation or copartnership, and 
 it is also provided that if any person holding a liquor tax cer- 
 tificate, and authorized to sell liquors, shall cease to traffic in 
 them, under certain circumstances, he may surrender that cer- 
 tificate and have refunded the pro rata amount of the tax paid. 
 These provisions of the statute, therefore, recognize that a liquor 
 tax certificate may be assets for administration; may be sold 
 to a person not disqualified; may be surrendered, and that it 
 has a surrender money value. These incidents of property being 
 attached by law to sucli certificates, constitute them property in 
 a legal as well as a popular sense; and, as they are salable and 
 assignable, they are properly the subject of a mortgage. The 
 mortgagee would acquire an absolute right, as between the parties 
 to the instrument, to the certificate on default in the payment 
 of the debt secured ; for the chattel mortgage mentioned in this 
 indictment was payable on demand, and on failure to comply 
 
196 Decisions Relating to 
 
 with the demand the iiihtrument would operate as a bill of 
 sale. 
 The conviction was right and the judgment must be afiflrmed. 
 
 RuM&EY^ Williams^ Ingraham and Parker, JJ., concurred. 
 
 Judgment affirmed. 
 
 Fourth Appellate Department, June, 1897. Reported. 19 App. Div. 627. 
 
 In the Matter of the Application of Alexander D. Jenny, as 
 Receiver, etc., for a Writ of Mandamus. 
 
 Order affirmed, with costs. All concurred. 
 
 Supreme Court, Chautauqua Special Term, July, 1897. Unreported. 
 
 In the matter of the petition of Krastus C. Hyde to revoke a 
 liquor tax certificate oi' Cortez D. McAllister. 
 
 Woodward, J. : The petitioner in this proceeding, Erastus 0. 
 Flyde, awks to have this court cancel liquor tax certificate No. 
 220S4, held by the defendant Oortez D. McAllister, upon the 
 grounds that two of the statemrnts contained in the application 
 for such certificate, and which are required by the statute to bft 
 stated, are false. The application for revocation is made under 
 the ]iro visions of section 28 of chapter 112 of the Laws of 1890, 
 which went into effect on the 23rd day of March of that year, 
 and is based upon subdivision S of section 17. This statute was 
 enacted for the primary purpose of raising a revenue ; it is known 
 by its short title, as the "Liquor Tax Law," and it is the duty of 
 the courts, in giving it effect, to so construe it as to promote this 
 object, consistently with its limitations. This view of the question 
 is justified, not alone by the rule that all laws are to be construed 
 to promote the objects for which they were enacted, but by the 
 language of the law itself, which makes it discretionary with the 
 court to decide whether the "material statements in the 
 application of the holder of such certificate were false," and 
 denying the right of appeal. The question thus presented to this 
 court is, therefore, whether the statements of this defendant, 
 
Liquor Tax Law 197 
 
 made in his application for a certificate under the provisions of 
 the Liquor Tax Law, and which are alleged to be false, are 
 ''material." If they are not, then this application must be denied. 
 
 Subdivision 8 of section 17 says that "when the nearest 
 entrance to the premises described in said statement as those in 
 which traffic in liquor is to be carried on is within two hundred 
 feet of the nearest entrance to a building or buildings occupied 
 exclusively for a dwelling, there shall also be so filed simultane- 
 ously with said statement a consent in writing that such traffic 
 in liquors be so carried on in said premises during a term therein 
 stated, executed by at least two-thirds of the owners of such 
 buildings within two hundred feet so occupied as dwellings, and 
 acknowledged as are deeds entitled to be recorded, except that 
 such consent shall not be required in cases where such trafific 
 in liquor is actually lawfully carried on in said premises so 
 described in said statement when this act takes effect." The 
 statement of the defendant was made on the 10th day of April, 
 1897, and in answer to the question, "Was such traffic in liquoFS 
 actually lawfully carried on in the said premises at the time of 
 the passage of this act?" he said "yes," when, as a matter of 
 fact, there was no building upon the property at that time. In 
 answer to the next question, "Is the nearest entrance to the 
 described premises within two hundred feet of the nearest 
 entrance to a building or buildings occupied exclusively for a 
 dwelling, and, if so, how many owners are there of such building 
 'or buildings?" The defendant answered, " No," although there 
 was a building within two hundred feet occupied by a family at 
 the time. These two answers constitute the two alleged false 
 statements in respect to this liquor tax certificate, and the court 
 is charged with the duty of determining whether these statements 
 are false, and if so, if they are "material." 
 
 If there was no "building or buildings occupied exclusively for 
 a dwelling " within two hundred feet of the premises occupied 
 by this plaintiff and described in the statement, then the answer 
 to the first question is entirely immaterial, for there could be 
 no occasion for an exception, and the question of whether the 
 premises were used in the lawful sale of liquor at the time of 
 the act going into effect could have no possible bearing. This 
 was an exception in favor of the person seeking the license, and 
 in aid of the policy of the law, to collect the largest possible 
 revenue, and was material only when there was a "building or 
 
198 Decisions Eelating to 
 
 buildings occupied exclusively for a dwelling" within a distance 
 of two hundred feet. The defendant explains this misstatement 
 by saying that the blanks were filled out by a lawyer; and that 
 he misunderstood his reading of the question and had in mind 
 that the question asked was whether the premises had been used 
 last year for the sale of liquors. 
 
 It is conceded on the part of the defendant if there were in fact 
 buildings within two hundred feet, used "exclusively for a dwell- 
 ing," that this would constitute a "material" falsehood, and 
 would be sufficient to justify the court in annulling the certifi- 
 cate, but it is contended, and the contention is sustained by a 
 preponderance of evidence, that the building in question was at 
 that time used as a public resort; that up to the first of March, 
 18'.)7, it was used in the illegal selling of liquors, in connection 
 with cigars and refreshments, and that at that time the woman 
 who conducted the establishment ran away, leaving it in charge 
 of her nephew ami her children, and that its general character 
 was in no wise clianged except that no liquors were sold upon 
 the premises, though the public were free to come and go, and 
 it was the custom when visitors desired drink, to go out and 
 get it for them at a jjlace across the street. In short the place 
 was a rendezvous of men and women of questionable reputations, 
 who were in no wise disturbed by the presence of the hotel of 
 the defendant, and, as the obvious intent of this provision was 
 to protect bona fide homos from the encroachments of hotels and 
 liquor-selling establishments, and the dwelling under considera- 
 tion having been used for immornl purposes, and a public resort, 
 the statement of the defendant in so far as it related to the 
 presence of "a building or buildings occupied exclusively as a 
 dwelling" within two hundred feet, was not false, and his prior 
 statement that the sale of liquors was actually carried on in the 
 premises at the time the Liquor Tax Law went into effect, is, 
 therefore, immaterial. In other words, the defendant would 
 have established his right to a certificate if he had answered this 
 question in the negative, and his formal statement made under 
 a misapprehension, cannot operate to deprive him of his property, 
 or to defeat the object of the law in producing a revenue to the 
 State. 
 
 The prayer of the petitioner is denied, with costs. 
 
V 
 
 Liquor Tax Laav \ 199 
 
 \ 
 
 Supreme Court, Torr^pkins Special Term, July b",- 1897. Unreported. 
 
 In re Jambs H. Cole for a Writ of Mandamus against Charles 
 IxGEusoLL as County Treasiirer, to compel the u-isuance of a 
 liquor tax certificate. 
 
 J. and T. E. Courtney, for relators. 
 
 ]\1. X. Tompkins, for respondents. 
 
 S.MiTii, J, : At the threshold of this proceeding the relator is 
 met with the objection that his proper remedy for the grievance 
 of which he complains is certiorari. This objection, I think, is 
 well made. The statute is explicit in its terms and provides 
 therein for a mode of review. 
 
 That mode, I think, was intended to be and is exclusive. The 
 above proceedings, therefore, must be dismissed with ten dollars 
 costs in each case. 
 
 County Court, Rockland County, August, 1897. Reported. 21 Misc. 188. 
 
 The People of the State of New York on the relation of 
 Christopher Fisher, for Writ of Certiorari, v. John M. 
 Hasbrouck, County Treasurer of the County of Eockland. 
 
 1. A town meeting need not be kept open continuously from sunrise to 
 sunset. 
 
 The provisions of the statute (Laws of 1890, chap. 569, R 29) that 
 "Town meetings shall be l^ept open for the purpose of voting in the day 
 time only, between the rising and setting of the sun," do not require that 
 the polls, at a town meeting, shall be open at sunrise and shall be kept 
 open continuously until sunset; and the fact that the polls at an annual 
 town meeting, to which was submitted, under section 16 of the Liquor 
 Tax Law of 1896, the question whether trafBc in liquors should be per- 
 mitted in the town, were closed about an hour before sunset, does not 
 invalidate the decision of the town, as shown by the votes cast at the 
 election, that such traffic be forbidden. 
 
 2. Election board — Acts not reviewable by certiorari. 
 
 The acts of an election board are not judicial in character, can not 
 be reviewed directly by a writ of certiorari, nor can they be reviewed 
 
200 DECISIONS Relating to 
 
 collaterally in such a raanner by a person who was denied a liquor tax 
 certincate and who asserts that the town election, which decided against 
 traffic in liquors in the town, was illegal because the polls were closed an 
 hour before sunset. 
 
 Oeetiokaci to review the determination of the treasurer of 
 Rockland county in refusing to grant to the relator a liquor tax 
 
 certilVate. 
 
 Frank S. Harris, for relator. 
 Harvey Debaun, for respondent. 
 
 Tompkins, J.: This is a special proceeding by writ of 
 certiorari, to review the action ol the county treasurer in refusing 
 to grant to the relator a liquor tax certificate under the Liquor 
 Tax Law of tlie State. 
 
 The ]K'tition shows the relator to be a resident of the town of 
 Raiiiapo in Rockland county, nnd a citizen of the United States, 
 and that he possesses all tlie qualifications required for the 
 issuing of a liquor tax certificate in a town where the traflQcking 
 in liquors is authorized by law, and the vote of the inhabitants 
 thereof. 
 
 It appear.^ that on the 12th day of May, 1897, the petitioner 
 duly applied to the county treasurer for a certificate under 
 subdivision 1 of section 11 of the Liquor Tax Law, accompanying 
 his application with a duly executed and sufficient bond and a 
 legal tender of the license lee or tax fixed by the statute to be 
 paid in towns. 
 
 His application was re fused — the petition stating that such 
 refuM;>l was based upon the fact that at the preceding town 
 election a majority of the votes had been cast in the negative on 
 all of the liquor propositions. 
 
 The relator's contention in the proceeding is that the election 
 was irregularly conducted and was illegal, and hence there was 
 no legal determination against the issuing of licenses or 
 certificates in that town and the writ of ccrtioniri was granted 
 under subdivision 1 of section 28 of the Liquor Tax Law which 
 provides as follows: "Wlieiu'ver any officer charged with the duty 
 of issuiiit; « * * a * * * liquor tax certificate under the, 
 proN'isiors (tf this act sliall refuse to issue the same, * * * 
 
Liquor Tax Law 201 
 
 siicli applicant shall have the right to a writ of certiorari to 
 review the action of such officer.'' The section further provides: 
 "If such judge or justice shall upon the hearing determine that 
 such application for a liquor tax certificate * * * has been 
 denied by such officer without good and valid reasons therefor, 
 and that under the provisions of this act such liquor tax certificate 
 should be issued, such judge or justice may make an order com- 
 manding such officer to grant such application, etc." 
 
 The return made by the respondent alleges — That at the annual 
 town election held in and for the town of Eamapo, on the 2d day 
 of March, 1897, pursuant to section 16 of the Liquor Tax Law, 
 the following proposition (among others) was submitted to those 
 qualified to vote at such election: 
 
 "Shall any corporation, association, copartnership or person be 
 authorized to traffic in liquors under the provisions of the sub- 
 division 1 of section 11 of the Liquor Tax Law in the town of 
 Eamapo ?" 
 
 That the total vote of said town in favor of the proposition was 
 517; and the total vote against it was 665; making a majority of 
 liS against the granting of such a license as the relator applied 
 for. 
 
 The respondent further shows that a recanvass of the vote on 
 said proposition was had ^^ ith the same result and that said 
 proposition was declared defeated by the canvassing board of saTd 
 town ; and before relator's application was made, a certified copy 
 of the statement of the result of said election and vote was filed 
 by the town clerk of said town, with said treasurer; and that he 
 refused to grant such license and certificate on the ground that 
 at the said election a majority of the votes had been cast in the 
 negative upon said proposition and that under the law he was 
 not authorized to issue the certificate asked for, and that he 
 returned the relator's application and bond. 
 
 No part of the return is traversed by the relator — on the 
 contrary the petition sets forth the result of the election and 
 states the same majority against the proposition as is shown by 
 the return. 
 
 The petitioner's whole case is based upon the alleged 
 irregularity of the election. 
 
 It is conceded that the polls of the several election districts of 
 the town were closed at 5 o'clock in the afternoon — and it is con- 
 tended by the petitioner that the polls should not have been closed 
 
i't-ll' DlOCISlO.N'S liELATIXU TO 
 
 1111 111 suiiwel: (nearly one houi; later) and that persons entitled to 
 vote were deiirivcd of the right and hence the election was illegal. 
 
 In short, the relator seeks to have the legality of the town 
 election determined in this proceeding against the coual:y 
 treasurer. 
 
 Assuming that I have power in this proceeding to pass upon 
 the legality of the acts of the inspectors of the election, I hav.i 
 come to the conclusion that the closing of the polls at 5 o'clock in 
 the afternoon does not invalidate the election or the results 
 thereof. 
 
 Section 29 of chapter M'.) of the Laws of 1890 provides: 
 
 ''Town meetings shall be kept open for the purposes of voting 
 in the daytime only, between the rising and setting of the sun." 
 
 Construing this statute, Judge Bradley of the Appellate 
 Division, Second Department, in the case of The People ex rel. 
 Van Sickle v. Austin, 4(5 N. Y. Supp. 52(3, says: "It appears 
 that the polls were opened at 9 o'clock in- the morning and con 
 tinned open from that until sunset, except one hour, from 12 
 o'clock noon until 1 o'clock, p. m.; unlike the statutory direction 
 applicable to general elections, the statute in question does not, 
 in express terms, provide the hour or time the polls shall be 
 open or that there shall be no adjournment or intermission until 
 the polls are closed. Laws 1896, chapter 909, section 3." 
 
 ''The language of the provision of the present statute as to 
 the time that town meetings shall be kept open for purposes of 
 voting is substantially no diffei'ent than it has been for upward 
 of eighty years (2 K. L. 127: 1 R. S. :142, §1G), and it never 
 has been so eonsh-ncd as to require that the polls of town meet- 
 ings be opened at sunrise iir continuously kept open until sunset 
 * * * but the (Dnti-ary has been held by the courts." {People 
 C.I- rcl. ^'lln >Sicl-J(' v. Aiisiiii. 40 N. Y. Siipp. .52().) 
 
 "It is not necessary that a town meeting should be kept open 
 from sunrise to sunset, but only during the daytime or some part 
 thereof." {People ex rcl. Simonson v. ]\farti)i. 5 N. Y. 22.) 
 
 The statute in operation at the time of the above decision by 
 the Court of Appeals was substantially like the present law and 
 provided that the polls should be kept open only during the 
 daytime, between the rising and the setting of the sun. 
 
 To the same effect was the decision of the Supreme Court in 
 the case of Goodel v. Baiter, 8 Conn. 285 : The petition alleges 
 (and it is not denied) that it had been the custom for years in 
 
Liquor Tax Law 203 
 
 the town of Ramapo to keep the polls open uninterruptedly from 
 sunrise to sunset, and it is contended on behalf of relator that 
 in closing them at 5 o'clock there was a departure from the 
 established custom, without notice, by which legal votes were 
 excluded " and the result changed " and the affidavits of nineteen 
 or twenty persons are submitted showing that they were entitled 
 to vote and intended to vote "yes" on the proposition but were 
 prevented from so doing by the early closing of the polls. Their 
 votes, however, would not have changed the result so far as 
 proposition No. 1, which provides for the certificate applied for 
 by the relator, is concerned, because the majority against it was 
 148. 
 
 It is urged by the counsel for the relator that the submission 
 of the proposition to less than the whole number of legally quali 
 fied voters desiring to vote thereon was not such a submission 
 as is contemplated by the law. Such a claim would undoubtedly 
 be good, if the election had not been lawfully conducted and 
 qualified voters sufficient in number to change the result had been 
 deprived of an opportunity to vote. In that event, one who was 
 injured thereby should have redress, but here, if all those who 
 were deprived of a vote had voted in favor of proposition No. 1, 
 it would not have changed the result, and relator's position 
 as an applicant for a liquor tax certificate under that sub 
 division would have been no better than it is to-day. 
 
 There are other reasons which require a dismissal of the writ, 
 which it is not necessary to discuss at length. There is no pro 
 vision of statute or authority of law for reviewing the election by 
 certiorari. It has been held that the acts of an election board 
 are not judicial in character and hence cannot be reviewed hy 
 certiorari. {People ex rel. Tan Siclcle v. Austin, 46 N. Y. Supp. 
 526.) 
 
 If not reviewable in a proceeding against them, they cannot 
 be collaterally, in a proceeding against the county treasurer. 
 
 Section 4 of chapter 16 of the Liquor Tax Law provides thai 
 "if for any reason the four propositions provided to be submitted 
 herein to the electors of a town shall not have been properly sub 
 mitted at such annual town meeting, such propositions shall be 
 submitted at a special town meeting duly called," etc. 
 
 In my opinion, if the occasion arises for such a special town 
 meeting, it must be called by the town board or the officer or 
 officers charged by law with the duty of calling town meetings, 
 
20i Decisions Relating to 
 
 and if iu a proper case such officer oi- board of ofQcers refuse to 
 do so a \\'rit of iiiunda/iiiis would lie to compel the calling of a 
 special election. 
 
 The certified copy of the statement of the result of the election 
 filed with the county treasurer by the town clerk was conclusive 
 upon him. 
 
 The statute says: "A certified copy of the statement of the 
 result of the vote * * * shall, immediately after such sub- 
 mission, be filed by the town clerk * * * with the county 
 treasurer * * * and no liquor tax certificate shall there- 
 after be issued," etc. 
 
 The county treasurer would have violated the law had he 
 granted a certificate to the relator, and it necessarily follows 
 that upon a review of his acts by the court he will not be required 
 to do so. 
 
 The writ of certiorari in review the action of the county treas- 
 urer, provided for by section :^S of the Liquor Law, was intended 
 for cases where that oflicial had the power and was charged with 
 the duty of issuing certificates, but failed or refused so to do. 
 It was intended only to grant power to a judge of the court to 
 compel the county treasurer to grant certificates in proper cases. 
 
 It was never the purpose of the law that a county treasurer, 
 after having a statement filed with him by the town clerk certify- 
 ing that a majority of the voters had decided against licenses, 
 should go about to ascertain whether the election was regular or 
 not, and if, in his judgment, it was not, to ignore the certified 
 statement and issue licenses, and if that is not the duty of the 
 county treasurer a judge cannot, by an order in a certiorari pro- 
 ceeding, compel him to do so. 
 
 For the reasons stated the writ of certiorari is dismissed and 
 the determination of the respondent confirmed. 
 
 Because no brief was submitted on behalf of the respondent 
 and thereby all the work of looking up the law and authorities 
 was thrown upon the court, I am inclined to grant no costs to 
 respondent; I will hear the attorneys, however, on that ques- 
 tion. 
 
 Writ dismissed. 
 
Liquor Tax Law 205 
 
 Third Appellate Department, September, 1897. Reported, 20 App. Div. 483. 
 
 Nathaniel Niles^ Plaintiff, v. Martin Mathusa and The 
 HiNCKBL Brewing Company^ Defendants. 
 
 A liquor tax certificate is a cliose in action — It is assignable on demand 
 as security for advances — A delivery not necessary — It need not be 
 filed — What laches do not impute fraud. 
 
 A liquor tax certificate, issued under tlie provisions of cliapter 112 ot 
 the Laws of 1896, having, by statute, a surrender value, passing to 
 personal representatives and being assignable upon certain terms to any 
 corporation, association, copartnership or individual not forbidden to 
 traffic in liquor, must be deemed to be a chose in action; as such it Is 
 assignable without delivery to a corporation which has advanced moneys 
 to the licensee in order to enable him to procure the certificate, and such 
 assignment need not he recorded as a chattel mortgage in order to make 
 it valid as against creditors ot the licensee. 
 
 Where the agreement made is to assign the certificate to the corporation 
 on demand, the demand may be made at the time that an application is 
 made by a judgment creditor of the licensee to procure in supplementary 
 proceedings the appointment of a receiver of his property. 
 
 A delay of some seven months, in making a demand of the licensee 
 that he assign the liquor tax certificate, does not establish laches, 
 amounting to fraud as against the creditors of the licensee. 
 
 Submission of a controversy upon an agreed statement of facts, 
 pursuant to section 1279 of the Code of Civil Procedure. 
 
 The submission in this case sets forth that the defendant 
 Martin Mathusa, on the 6th day of June, 1896, obtained what is 
 known as a |500 license under the provisions of chapter 112 of 
 the Laws of 1896, authorizing him to traffic in and sell liquors at 
 No. 22 Franklin street in the city of Albany, and under such 
 license engaged in and conducted said business from the time 
 of the issuance thereof down to the 18th of January, 1897. At 
 the time the license was issued the Hinckel Brewing Company 
 furnished said Mathusa the sum of |283..3;} for the purpose of 
 enabling him to obtain the same, and it was agreed that the 
 said Hinckel Brewing Company should have a lien on the cer- 
 tificate and that it should be considered its property until said 
 sum of 1283.33 was paid in full. And said Mathusa thereupon 
 executed the following instrument: 
 
 "Albany, N. Y., U. S. A., June 6th, 1896. 
 "I hereby agree to assign, transfer and set over to the Hinckel 
 Brewing Company on demand, license numbered 13,795, taken 
 
206 Decisions Eelating to 
 
 out in my name, for and in consideration of the sum of $283.33 
 loaned to me for the purpose of purchasing said license, to be the 
 property of the Hinckel Brewing Company; and until sum of 
 1283.33 is paid in full the license is the property of the said 
 company. 
 
 "MARTIN MATHUSA." 
 
 The plaintiff on or about the 1st day of December, 1896, 
 obtained a judgment against the defendant Mathusa for $160 
 damages and costs, which at said time was duly docketed in the 
 county of Albany ; execution was issued on said judgment on the 
 1st of December, 1896, and returned unsatisfied. On the 2d 
 day of December, 1896, the plaintiff procured an order in supple- 
 mentary proceedings, and the defendant Mathusa was afterwards 
 examined thereunder. On the 9th day of January, 1897, an 
 application was duly made for the appointment of a receiver of 
 the property of said judgment debtor. On the application 
 Mathusa and the Hinckel Brewing Company claimed that the 
 liquor tax certificate issued as aforesaid to Mathusa was not his 
 property, but belonged to the Hinckel Brewing Company by 
 virtue of the oral agreement and the assignment above set out. 
 
 The court before whom the proceedings were had appointed 
 a receiver of the property of JIathusa, but permitted him to 
 transfer and deliver the liquor tax certificate in question to the 
 Hinckel Brewing Company. 
 
 The question submitted is whether or not, under the facts 
 above stated and the assignment above set forth, a valid legal 
 or equitable assignment of the liquor tax certificate was created 
 in favor of the Hinckel Brewing Company, superior to the lien 
 of the plaintiff by virtue of his judgment, execution and supple- 
 mentary proceedings. 
 
 B. A. Peckham, for the plaintiff. 
 
 J. Murrcnj Downs, for the defendants. 
 
 Putnam, J. Under the provisions of chapter 112 of the Laws 
 of 1896, the defendant Mathusa, by the liquor tax certificate 
 issued to him, obtained the right to sell and traffic in liquor at 
 his place of business in the city of Albany. By section 25 of the 
 act, if thereafter he should choose to discontinue the traflSc, he 
 
Liquor Tax Law 207 
 
 was authorized to surrender the certificate, and was thei'eupon 
 entitled to receive a pro rata amount ol' the tax paid for the 
 unexpired term. If a receiver or assignee should thereafter be 
 appointed of his property, or he should die and an executor 
 or administrator of his estate should be appointed, such receiver, 
 assignee, executor or administrator could surrender such cer- 
 tificate and receive the cash value thereof for the unexpired term ; 
 or, under certain restrictions and regulations, could continue the 
 same business on the same premises. By section 27 of the act 
 Mathusa could sell, assign and transfer the tax certificate to any 
 corporation, association, copartnership or individual not for- 
 bidden to traflic in liquor under the provisions of the act. 
 Although under this section the assignee could not continue to 
 carry on the business of trafficking in liquor without the consent 
 of the officer who issued the certificate, or his successor, under 
 the provisions of sections 27 and 28 of the act, such consent 
 could not be arbitrarily refused. If the assignee was not for- 
 bidden to traffic in liquors under the provisions of the act or 
 under the subdivision of section 11, under which the certificate 
 was issued, it cannot be doubted but that- he had a legal right to 
 the consent of the officer who issued the certificate, and that 
 the giving of such consent would be directed by the court under 
 the provisions of section 28 of the act. 
 
 tinder the provisions of the statute we see no reason to doubt 
 that the defendant Matliusa could sell and assign his interests 
 in the liquor tax certificate in question, either absolutely or In 
 the way of a security for the money advanced by the Hinckel 
 Brewing Company to enable him to procure the license. 
 Although, to enable the latter as an assignee to carry on the 
 business under the certificate, it was necessary for it to obtain 
 the consent of the officer who issued the same, yet the assignment 
 must necessarily precede such consent. And if such consent 
 tf) an assignment was necessary when, as in this case, the 
 assignee merely desired to surrender the certificate and recover 
 the cash value thereof, as we have seen, it could not be arbitrarily 
 refused, but under the provisions of section 28 the officer who 
 issued the same could be compelled to grant it. 
 
 It cannot be doubted but that the liquor tax certificate in ques- 
 tion conferred upon the defendant :\Iathusa a property right. 
 This is conceded by the parties. It was a right not only to do 
 business, to sell and traffic in liquors at his place of business in 
 
-OS Deijisioms Kelatjxg to 
 
 rlie citj oi' Albany, but also, under ccrlain circumstances, a riglil 
 for liim, his a.sMigus, executors or administrators, to recover a 
 certain sum from tlie State. 
 
 Under the contract between Mathusa and the Htate the former 
 would not be entitled to recover of the latter the surrender value 
 of the certificate unless he should thereafter discontinue the 
 business of trafUcking in liquors. The right given to Mathusa 
 under the certificate to receive from the State, under certaiu 
 circumstances, the pro rata amount of the tax paid for the unex- 
 pired term, was, therefore, a contingent one. 'We think, however, 
 the assignment made by Mathusa to the Hinckel Brewing Com- 
 pany valid. It is a well-settled principle that "courts of equity 
 will support assignments, not only of chosen in action and of 
 contingent interests and expectancies, but also of things which 
 have no present, actual or potential existence, but rest in mere 
 ])i)ssibility ; notj indeed, as a present, positive transfer, operative 
 in prcscnti. for that can only be of a thing in esse, but as a 
 present contract, to take etiect and attach as soon as the thing 
 comes in esse." (Story's Eq. Juris. § lOiO; Williaiiis ct al. v. 
 Iiifjcrsoll ct al. S!) N. Y. .'OS; Harirood v. La Grange, 137 id. 538; 
 Holmes ct al. v. Evans et al.. 129 id. 140; Fairhanlcs v. i^argoit, 
 104 id. lOS; S. C, 117 id. 3l-'0.) 
 
 It is urged by the plaintiff that the assignment under which 
 the Hinckel llrewing Company claimed is in the nature of a 
 mortgage, and, not having been filed, was void as to creditors. 
 In Booth etal. v. Kclioe et al. (71 N. Y. 341), where an instru- 
 ment transferring a lease as a security for a debt was considered, 
 ]\liLLEE, J., referring to the ]irovisions of the statutes requiring 
 the filing of a chattel mortgage, said: '' They relate to goods and 
 chattels which can be removed from one place to another, and 
 the possession thereof changed, and not to chattels real, or a 
 chose in action." In Harrison v. Burlingamc (48 Hun, 212) it 
 was decided that the statute in relation to the filing of chattel 
 mortgages did not a]>]ily to a mortgage of a mortgage. The same 
 doctrine was stated in Freeman v. Rich (64 Hun, 478), of an 
 assignment of accounts as security for a debt. (See also, Fair- 
 hanl-s V. Sargent, supra; Williams et al. v. Ingersoll et al., 
 sapra.) 
 
 The learned counsel for the plaintiff urges that the right of 
 one having a liquor tax certificate to recover its surrender value 
 is not a chose in action ; that when the license was issued " a 
 
Liquor Tax Law 209 
 
 tangible piece of property, capable of actual transfer and reduc- 
 tion to possession, came into existence " ; that its surrender value 
 could not be recovered without a surrender of the certificate; it 
 could not be assigned without a delivery ; that the right of a licen- 
 see under the statute in question is so intimately associated 
 with and dependent upon the paper or written tax certificate 
 delivered to him by the oflicers of the State, that such paper itself 
 must be deemed the property obtained by the licensee, and a 
 chattel. 
 
 We are unable to accede to this view. We regard the right of 
 Mathusa, under the certificate granted to him, to be paid the 
 pro rata amount of the sum paid on obtaining a license, as in 
 the nature of a chose in action. In People ex rel. Stanton v. 
 Tioga, C. P. (19 Wend. 73, 75) OoweN;, J., defines a chose in 
 action as " not only a demand arising on contract, but also on 
 wrong or injury to the property or person." In 3 American and 
 English Encyclopaedia of Law, 235, a chose in action is defined 
 as "a right of proceeding in a court of law to procure the pay- 
 ment of a sum of money." The demand of Mathusa under his 
 certificate to a rebate arose under a contract between him and 
 the State. The payment of the sum to which he was entitled on 
 the surrender of his certificate could be enforced by legal pro- 
 ceedings. It does not matter what form of action or legal pro- 
 ceedings he might be compelled to adopt to enforce his demand. 
 He or his assignees, under his contract with the State, had the 
 right to demand payment of a certain sum of money, which right 
 he could enforce by mandamus or other legal proceedings. This 
 right was in the nature of a chose in action, and not the less 
 so because he or his assigns would only be entitled to exercise 
 that right on discontinuing the sale of liquors under the license. 
 
 What Mathusa in effect assigned to the Hinckel Brewing Com- 
 pany icas not so much the paper given the former Tyy the fitate, 
 tut the rights derived hij him, under that paper — the right to 
 traffic in liquor, and a right to a redate on the discontinuance 
 of that traffic. It ivas no more the assignment of a chattel than 
 the assignment of the lease considered in Booth et al. v. Eehoc 
 et al. (supra), or the assignment of the mortgage referred to in 
 Harrison v. Burlingame {supra). In the case last cited the 
 right of the mortgagee was derived from and dependent upon 
 the written indenture of mortgage jiist as much as Mathusa's ' 
 right to trafflc or to a rebate upon discontinuing such trafSc was 
 
-10 ])iOL'isi()xs Kiolatim; to 
 
 deiicndeut upon the certificate. If the mortgagee in the case 
 cited had sold the moit.i;:ii;e, a delivery of the instrument would 
 have been necessary, and on the foreclosure and collection thereof 
 he would have been compelled to surrender the security. As in 
 the case cited, the mortgagee was secured certain rights under the 
 written indenture of mortgage, so Mathusa, under the written tax 
 certificate in question, was secured the right, under certain cir- 
 cumstances, to be paid the surrender value thereof. 
 
 It is claimed that the agreement to assign is conditioned upon 
 demand; that no demand has been made and hence no lien is 
 created. The plaintiff under his judgment, execution and the 
 proceedings he has taken, only took such right in the certificate 
 in question as ^lathusa had at the time. Mathusa's right was 
 subject to the claim of the Hinckel Brewing Company under the 
 oral and written contract admitted in the submission. A 
 demand under said contract cduld be made at any time. It is 
 made now. 
 
 It is also urged that the said company has been guilty of such 
 laches in enforcing its lien as to show fraud. We are of opinion, 
 under the circumstances of the case, that the mere delay of the 
 company in enforcing its equitable rights is not enough to charge 
 it with fraud, although it is true that such delay, under other 
 circumstances and in connection with other facts, might tend to 
 indicate a fraudulent intent. But there are no other circum- 
 stances shown to substantiate the charge of fraud. It is con- 
 ceded that the defendant, the Hinckel Brewing Company, 
 advanced |283.;>:'i to enable ^Mathusa to obtain the certificate, 
 and that it has not been repaid that sum. We do not feel 
 justified in holding that the mere delay of the company in 
 collecting the sum it had advanced is suflEicient to indicate a 
 fraudulent intent on its part, or that, under all the circumstances, 
 the creditors of ^Mathusa have been injured by the action of the 
 Hinckel Brewing Comjiany in the matter. 
 
 We, therefore, conclude that the defendants are entitled to a 
 judgment for the relief demanded, with costs. 
 
 All concurred. 
 
 .Judgment for defendants for relief demanded, with costs. 
 
Liquor Tax Law 211 
 
 Second Appellate Department, October, 1897. Reported. 20 App. Div. 566. 
 
 Richard A. McNeelby^ Respondent, v. John Welz and Charles 
 Zerweck^ Appellants, Impleaded with Henry W. Michbll and 
 Others. 
 
 Liquor Tax Law of 1896 — A liquor tax certificate can not be levied upon 
 under an execution — Construction of a chattel mortgage of a license 
 and its "renewal" — What will be construed to be an action to 
 foreclose it — Costs against a defendant claiming to have an interest. 
 
 A liquor tax certificate issued under chapter 112 of the laws of 1896, 
 and a surrender receipt therefor are, neither of them, evidences of debt 
 upon which the Code of Civil Procedure, section 1411, authorizes an 
 execution to be levied. 
 
 A chattel mortgage given May 15, 1896, which covers "the right of the 
 mortgagor to a license to sell beer or to a renewal thereof," embraces a 
 liquor tax certificate subsequently issued in renewal of the license under 
 chapter 112 of the Laws of 1896. 
 
 A complaint in an action brought to procure a determination as to the 
 mortgagee's rights to the amount of the rebate on the surrender of the 
 liquor tax certificate, considered to be an action to foreclose the mortgage 
 and consequently to bring the subject-matter of the action within 
 equitable cognizance. 
 
 What is sufficient to show that a defendant claimed an interest in the 
 subject of the action, and consequently to entitle the plaintiff to costs as 
 against such defendant. 
 
 Appeal by the defendants, John Welz and Charles Zerweck, 
 from a judgment of the Supreme Court in favor of the plaintiff, 
 entered in the office of the clerk of the county of Kings on the 
 16th day of March, 1897, upon the decision of the court rendered 
 after a trial at the Kings County Special Term. 
 
 The complaint in this action asked as relief that the plaintiff 
 be adjudged to be entitled to the rebate upon the liquor tax 
 license certificate which is referred to in the opinion; that the 
 defendants be declared to have no title thereto, and that the 
 plaintiff have judgment for the amount thereof against the 
 defendant Michell. 
 
 M. Hallheimer, for the appellants. 
 
 George D. Armstrong and E. D. Benedict, for the respondent. 
 
 WiLLARD Bartlett, J. Ou May 15, 1896, Emil Schiellein, who 
 was then engaged in the business of selling liquor at a place 
 
-i- DEcisiOiNS Relating to 
 
 called Ivuffle Bar, in King.s couutj', executed to the plaintiff a 
 chattel mortgage to secure the i-uiiayment of a cash loan of ^'J.,'200. 
 This mortgage covered turniture, household goods and other 
 personal property used by the plaintiff in his business, and also 
 all his right, title and interest " to a license to sell beer or to a 
 renewal thereof." Schiellein subsequently, on June HU, 1896, 
 obtained a liquor tax certiflcaie from llenry W. Michell, the 
 special dei)uty commissioner of excise for Kings county, under 
 the new Liquor Tax Law. (Chap. 112, Laws of isDO.j He 
 retained this certificate until October 31, 1806, when he sur- 
 rendered it to the special deputy commissioner, from whom there 
 then became due to Schiellein a rebate of f325, but not having 
 the money \a ith which then to pay this rebate, that officer gave 
 him an instrument known as a suireiider receipt, stating that the 
 sum of .?IJ2ij was payalile on the surrender certificate out of any 
 excise money thereafter reeeived from the city of Brooklyn or 
 county of Kings, or in any nther manner thereafter legalized. 
 No money has yet been paid on the surrender. 
 
 Meantime the apitellants Welz and Zer\\eek had sued Schiellein 
 upon a promissory note for '^'■:0i), and had obtained judgment 
 ngainst him upon which an execution was issued, under which 
 a depuly sheriff of Kings euunty, on October 15, 1896, assumed 
 to levy upon Schiellein's tax certificate and its surrender value. 
 This he did by serving upon Mr. Michell, the special deputy coui- 
 missiouer of exeise, a notice in writing informing that ofiicer 
 that he had levied upon all the leviable right, title and interest 
 which Emil Schiellein had on October 1, 1896, or at any time 
 thereafter, in whose hands soever the same might be, in and to a 
 liquor tax certificate then in the commissioner's possession. The 
 deputy sheriff did not see the liquor tax certificate at the time in 
 the commissioner's office, nor was it there in fact, nor did he sea 
 any money purjiorting to belong to Schiellein. The certificate 
 had not yet in fact been surrendered. 
 
 Upon the oral argument we intimated a pretty strong opinion 
 that a liquor tax certificate, issued under chapter 112 of the 
 Laws of 1896, was not subject to levy under execution. To thl*( 
 opinion we adhere. Such a certificate does not fall within any 
 class of those evidences of debt upon which the Code authorizes 
 an execution to be levied. (Code Civ. Proc. § 1-411.) 
 
 That the liquor tax certificate was embraced within the terms 
 of Schiellein's mortgage to the plaintiff we think is equally plain. 
 
LiQuoE Tax Law 213 
 
 As the learned trial judge suggests, the defendant Schiellein, by 
 referring in the mortgage to a renewal of his license, must have 
 had in contemplation its renewal in the only manner possible 
 under the new law, that is, by taking out a liquor tax certificate. 
 
 AVe find no difQculty, therefore, in sustaining the conclusions 
 of the court below to the effect that the appellants took nothing 
 by their attempted levy upon the liquor tax certificate, and that 
 the plaintiff under his mortgage became entitled to the $325 
 rebate thereon. 
 
 It is not so clear that the plaintiff was entitled to have his 
 rights to this fund determined in equity instead of resorting to a 
 suit at law; but, as the real points of difference between the 
 litigants have been fully and fairly tried out and decided, the 
 judgment should be upheld if there be any reasonable view upon 
 which the equitable jurisdiction of the court can be asserted. 
 We think the action may be regarded as a suit to foreclose the 
 plaintiff's mortgage so far as it related to the liquor tax certifi- 
 cate, and hence as cognizable in equity. Thus viewed, the appel- 
 lants were proper parties defendant, for the proof that the deputy 
 sheriff attempted to levy on the certificate by direction of their 
 attorney is sufficient to show that they really claimed an interest 
 in the rebate as alleged in the complaint. Indeed, the only denial 
 of this allegation is a statement in the answer that they have 
 no knowledge or information sufficient to form a belief as to 
 the matter, which statement is incredible. A defendant must 
 know whether he makes or does not make a particular claim. 
 Inasmuch, therefore, as the appellants have evidently been per- 
 sistent in their efforts to obtain a fund to which the plaintiff 
 has established his right, we think the award of costs against 
 them should stand as well as the rest of the judgment. 
 
 All concurred. 
 
 Judgment affirmed, with costs. 
 
214 Decisions Relating to 
 
 Second Appellate Department, October, 1897. Reported. 21 App. Div. 210. 
 
 The D. M. Koehler & Son Company^ Appellant, v. Henrf 
 Flebbe, Defendant. 
 
 Prank J. Connolly, as Receiver, etc., of Henry Flebbe, Appel- 
 lant; George I. Amsdbll, Respondent. 
 
 A liquor tax certificate — An assignment of, as security, need not be filed 
 as a chattel mortgage — ^A receiver compelled to deliver it to the 
 assignee. 
 
 A person who has furnished money to procure a liquor tax certificate, 
 to one who has assigned it to the lender as security for the repayment 
 of the loan, is entitled to Its possession as against a subsequently 
 appointed receiver of the property of the apparent owner who has come 
 into possession of it. 
 
 Such a certificate being a chose in action, its assignment need not be 
 filed as a chattel mortgage in order that its continued retention by the 
 assignor shall not render it void as to his creditors. 
 
 Appeal by the plaintiff, the D. M. Koehler & Son Company, 
 and Frank J. Connolly, as receiver, etc., of Henry Flebbe, from an 
 order of the Supreme Court, made at the Dutchess Special Term 
 and entered in the ofSce of the clerk of the county of Dutchess 
 on the 29th day of July, 1897, directing the said receiver to 
 deliver a liquor tax certificate to the respondent, George T. 
 Amsdell. 
 
 ^Y()0(l & Morscliauser, for the appellants. 
 
 Gains C. Bolin, for the respondent. 
 
 Bradley, J. In proceedings supplementary to the execution 
 issued upon the judgment against the defendant Flebbe, Con- 
 nolly was appointed receiver of his property and obtained from 
 him the possession of a liquor tax certificate. Before the judg- 
 ment was recovered, Amsdell had advanced to the defendant the 
 sum of $300 to enable him to obtain the certificate. It was taken 
 in the name of the defendant, who, pursuant to the understand- 
 ing when the money was advanced, assigned the certificate to 
 Amsdell as security for the repayment of the money; and before 
 the receiver so obtained the possession of the certificate the 
 
Liquor Tax Law 215 
 
 defendant had paid to Anisdell seventy dollars of the amount 
 so advanced. The order was made upon the motion of Amsdell 
 for direction to the receiver to surrender the certificate to him. 
 Upon those facts he was entitled to it unless there is some statu- 
 tory provision having the effect to deny such relief to him. 
 
 It is urged (1) that the transfer of the certificate was void as 
 against the creditors of the defendant; (2) that the certificate 
 was not assignable to Amsdell. 
 
 In support of the first proposition it is insisted that the assign- 
 ment came within the provisions of the statute relating to a 
 mortgage of goods and chattels ; and that, as the assignment was 
 not filed, the continued possession of the mortgagor rendered 
 it ineffectual against creditors. The difficulty with that assump- 
 tion is that the certificate is a mere chose in action, and while 
 the assignment was otherwise in tlie nature of a mortgage of 
 personal property, it did not come within the statute relating 
 to mortgages of goods and chattels, as those provisions of the 
 statute relate only to things in possession as distinguished from 
 those in action. And, therefore, as against the creditors of the 
 defendant, no filing of the instrument of assignment was 
 required, nor was the possession by the assignee essential to the 
 support of his claim to the certificate. The creditor does not, 
 nor does the receiver, have the character of a bona fide purchaser. 
 
 The objection that the certificate was not assignable to Amsdell 
 is not available to the appellants. The statute provides for 
 assignment by the holder of a liquor tax certificate to his suc- 
 cessor in the business of selling liquors, and further provides 
 " that no such sale, assignment or transfer shall be made except 
 in accordance with the provisions of the Liquor Tax Law." (Laws 
 of 1897, chap. 312, § 18, amending Laws of ISOG, chap. 112, § 27.) 
 It does not appear what was the value of the certificate at the 
 time Connolly obtained possession of it, and it is not claimed 
 by the appellants that its value was then in excess of the amount 
 remaining unpaid of the money advanced by Amsdell. In that 
 view, and as the receiver is an officer of the court, he was subject 
 to its lawful direction. 
 
 As between the parties the statute has no application to the 
 assignment. 
 
 It is unnecessary to inquire whether the public authority from 
 which the certificate was derived could be required to recognize 
 
-16 Decisions Relating to 
 
 as effectual the transfer of such a certificate for the purpose that 
 this was made. That question is not considered. 
 The order should be affirmed. 
 
 All concurred. 
 
 Order afSrmed, without costs. 
 
 Fourth Appellate Department, October, 1897. Reported. 21 App. Div. 634. 
 
 The People op the State of New York ex rel. Charles T. 
 Watkins^ Ai)pellant, v. Alansun B. Bishop, as Town Clerk of 
 the Town of ^^'arsaw, Respondent. 
 
 This is an appeal from an order denying relator's motion for 
 a writ of mandamus compelling defendant as town clerk to call 
 a special town meeting for the purpose of submitting the ques- 
 tions required to be submitted by the provisions of the Liquor 
 Tax Law. 
 
 Charles D. Newtox, attorney for appellant: There is no 
 authority in law for use of a ballot machine to vote upon the 
 excise propositions. There was no authority to use the ballot 
 machine for the purpose of voting upon the excise propositions 
 inasmuch as the machine has never been adopted for use at all 
 elections by the Town Board of the Town of Warsaw. 
 
 BoTSFORD & ZwETScii, attorneys for respondent: The Town 
 Board had sufflciently adopted the use of the ballot machine to 
 lawfully use same for purpose of voting upon the excise proposi- 
 tions. Voting by other methods than the ballot is prescribed by 
 law. Art. il., §5, Constitution of State of New York; People 
 ex rel. Bradshaw v. Bidelman, 2(! N. Y. Supp. 954. The courts 
 will not uphold technical objections to make the right of voting 
 insecure and difficult. People ex rel. Hirsh v. Wood, 14S N. Y. 
 142, 140; Matter of Taylor, 150 N. Y. 242; Matter of Many, lO 
 App. Div. 451, 453; People ex rel. Goring v. President, &c. 144 
 N. Y. 616; People ex rel. Bradley v. Shaw, 133 N. Y. 492. 
 
 Order affirmed, with costs. 
 
 All concurred. 
 
Liquor Tax Law 217 
 
 Supreme Court, Monroe Sp3cial Term, October, 1897. Reported. 
 
 21 Misc. 375. 
 
 The People ex rel. Jajies W. Baglby^ Relator, v. John B. 
 Hamilton^ Treasurer Monroe County, Eespondent. 
 
 Liquor Tax Law — Exemption of "places," within 200 feet of a cliurcli, 
 used for liquor traffic on March 23, 1896 — Temporary suspension of 
 traffic immaterial. 
 
 The provisions of section 24 of the Liquor Tax Law (chap. 112, Laws 
 of 1S96, as amended by chap. 312 of the Laws of 1897), which, after enact- 
 ing that trafflc in liquor shall not be permitted, under the provisions of 
 subdivision 1 of section 11, in any building or other place which shall be 
 in the same street and within 200 feet of a building used exclusively as a 
 church, further provide that "this prohibition shall not apply to a place 
 which, on the twenty-third day of March, eighteen hundred and ninety-six 
 (the day on which the act took effect), was lawfully occupied for a hotel, 
 nor to a place in which such traffic in liquors was actually lawfully carried 
 on at that date," extend the immunity of the exception to the "place," 
 irrespective of the person selling liquors there; and, consequently, where 
 it appears that a place, situated within 200 feet of the building used 
 exclusively as a church, was devoted to trafflc in liquors on the 23rt day 
 of March, 1896, and up to and including the 31st day of July, 1897, an 
 applicant, under the provisions of subdivision 1 of section 11, for a license 
 at the "place," is entitled thereto, nowithstanding the fact that liquor 
 traffic at the "place" had been temporarily discontinued for five days after 
 the 31st day of July, 1897, at the expiration of which period the applicant 
 sought a liquor tax certificate for the "place." 
 
 Writ of certiorari to review the refusal of the treasurer of 
 the county of Monroe to issue a liquor tax certificate. 
 
 Sol Wile, for relator. 
 
 Charles E. Bostwick, for respondent. 
 
 Nash^ J. The application of the relator for a liquor tax cer- 
 tificate was refused by the county treasurer upon the ground 
 that the premises for which a liquor tax certificate is sought are 
 within two hundred feet of a building used exclusively for a 
 church. 
 
 Section 24 of the Liquor Tax Law (chapter 112, Laws of 1896, 
 as amended by chapter 312, Laws of 1897) provides, that traffic 
 in liquor shall not be jtcrmitted under the provisions of sub- 
 
-IS Decisions Eelating to 
 
 di\ iwion 1 oi' section 11 (the siil)(livision iiiidir wliicli the relator 
 makes liis application) in any building di- (dlicr iilacc which shall 
 be in the same street and within two hundred feet of a building 
 us( (1 exclusively as a church; it is fui-llier pr<)\ided that "this 
 ]n(ihibition shall not apply to a place \N-liich on the i;:;d day of 
 -March, 1896 (the day on which the act took- ellVct), was lawfully 
 occupied for a hotel, nor to a place in which such traffic- in liquors 
 was actually lawfully carried on at that date." 
 
 It appears that such traflic in liquors was actually carried on 
 at that place tor which the certificate is sought on the i';id day of 
 ;\Iarch, 1890, and up to and including the :;ist day of July, 1S97, 
 and has not since been carried on at that place. 
 
 That subsequent to the ;'.lst day of July last, the relator took 
 a lease of the premises or place where such traffic in liquors had 
 been carried on, and on the 4tli day of September, 1S97, applied 
 lo the county treasurer for a certificate, having complied with 
 every requirement of the statule as a condition ol' the granting 
 thereof. 
 
 The refusal is placed upon the ground that the business of 
 trafficking in liquors having been discontinued by the person 
 lawfully carrying it on at the time the Liquor Tax Law took 
 effect, a certificate for the traffic in liquors at that place (it being 
 within two hundred feet of a church) cannot issue. 
 
 This brings up the question whether it is the place within 
 which the business is carried on, or the person who is lawfully 
 carrying on the business that is within the exception; plainly the 
 reading of the statute is that it is the phicc; the full text of the 
 provision is that the prohibition shall not apply " to a place 
 which on the 23d day of :March, 1897, was laAvfully occupied for 
 a hotel, nor to a place in which such traffic in liquors was actually 
 lawfully carried on at that date, nor to a place which at such 
 date was occujiicd, or was in jirocess of construction by a corpo- 
 ration or association A^liich traffics in liqu(u-s solely with the 
 members thereof, nor to a place within such limit to which a 
 corporation or association iraffirking in liquors solely with the 
 members thereof at such date may remo^■e." 
 
 No other construction than that it is ihe ])lace which is 
 exccjtted can be put upon the language in which the legislature 
 has seen fit to frame this excejition. 
 
 That the legislature intended plainly what the language of 
 the exception imports may be inferred from ihe fact that in the 
 
Liquor Tax Law 219 
 
 act of 1892, regulating the sale of intoxicating liquors (chapter 
 iOl, LaAvs ISOi!), it was provided, that no person who should 
 not have become licensed prior to the passage of the act, should 
 tiiereafter be licensed to sell strong or spirituous liquors, in any 
 building not used for hotel purposes, and for which a license did 
 not exist at the time of the passage of the act, which should be 
 on the same street or avenue and within two hundred feet of a 
 building occupied exclusivelv as a church. 
 
 The exception in that act was held by the Court of Appeals to 
 apply to a person who had been licensed to sell at the inhibited 
 place previous to the passage of the act, and whose license was 
 in force when the law was enacted, and not to the place where 
 the business was carried on. 
 
 The legislature with the law construed as it had been by the 
 courts before it, has changed the exception from the person hold- 
 ing a license, to the place in which trafSc in liquors was lawfully 
 carried on at the date of the passage of the act. 
 
 It is contended that if the traffic in liquors is discontinued by 
 the person carrying it on at the time the act took effect, a cer- 
 tificate cannot afterward be granted to another to resume the 
 business at the same place. If this is the construction to be put 
 npon this provision of the law it would be applicable to any 
 suspension of the business however short, and might prevent even 
 a change of proprietorship. The legislature could have prevented 
 all traffic in liquors within two hundred feet of a church, but 
 it has not done that, it has excepted certain properties from tlie 
 operation of this subdivision of section 24, and the language of 
 the statute should have a reasonable construction. T'he purpose 
 of the legislature as appears from the context was to protect 
 certain properties from the operation of this prohibition, and it 
 vvas not made a condition as to any of the other places mentioned 
 (hat the traffic in liquors should have been actually lawfully 
 carried on when the act took effect. The other places to which 
 the exception applies are " a place lawfully occupied for a hotel, 
 a place which at such date was occupied- or in process of con- 
 struction by a corporation or association which traffics in liquors 
 solely with the members thereof, nor to a place within such limit 
 to which a corporation or association trafficking in liquors solely 
 with the members thereof, at such date may remove." If a place 
 at which as a condition of exr-mption it is required that the traffic 
 in liquors should have been 'actually lawfully carried on should 
 
L'L'O Decisions Relating to 
 
 be put to other uses, and tlie traffic in liquor entirely abandoned 
 it might properly be regarded as a forfeiture of the right to a 
 certificate, but a temporary susjjension of the business does not, 
 in my judgment, have that effect. 
 
 It follows that the county treasurer should be required to issiie 
 the certificate pursuant to the prayer of the petition. 
 
 Ordered accordingly. 
 
 Supreire Court, Onondaga Special Term, October, 1897. Reported. 
 
 21 Misc. 383. 
 
 In the Matter of the Application of ?iIacVickbr et al. to Revoke 
 Liquor Tax Certificate Issued to Clarence Riley. 
 
 Liquor Tax Law — Consents — Fraud. 
 
 The amendment, made to section 17, subdivision 8 of tlie Liquor Tax 
 Law of 1896, and providing that "whenever the consent required by this 
 section shall have been obtained and filed as herein provided, unless the 
 same be given for a limited term, no farther or other consent tor traiflcking 
 in liquors on such premises shall be required so long as such premises 
 shall be continuously occupied for such traffic," has no retroactive force; 
 and where an application is made to revoke a second certificate, upon the 
 ground that the applicant was guilty of fraud in the matter of the con- 
 sents thereto, he can not successfully resist the application by claiming 
 that, under the amended statute, the consents which he obtained for the 
 first certificate inure to the benefit of the second certificate and make 
 consents to that certificate unnecessary. 
 
 Proceeding to revoke and cancel a liquor tax certificate issued 
 by the treasurer of Lewis county. 
 
 Walter Ballon, for application. 
 
 C. S. Mereness, opposed. 
 
 HiscocK, J. This is a proceeding to revoke and cancel a liquor 
 tax certificate issued by the treasurer of Lewis county on or about 
 May 15, 1897, to one Clarence Riley. 
 
 The certificate was issued under subdivision 1, section 11 of the 
 Liquor Tax Law. The proceeding to cancel the certificate is pur- 
 suant to subdivision 2, section 28 of said law and proceeds upon 
 the theory that material representations contained in the 
 
LiQuoE Tax Law 321 
 
 application in respect to consents of owners of bnildings 
 occupied as dwellings within tAvo hundred feet of the location of 
 the place where the tralHc in liquor was to be carrieii on, are 
 false. 
 
 In October, 1896, said Riley procured a liquor tax certificate 
 to keep a saloon at the premises mentioned in the application for 
 the present certificate and carried on business thereunder until 
 the one now in question was issued on or about May 15, 1897. 
 At the time when he procured his first certificate there were four 
 buildings used exclusively as residences within the prescribed 
 limit of two hundred feet from the nearest entrance to the build- 
 ing where he proposed to carry on his business and Eiley obtained 
 the necessary consents. This number of buildings continued 
 without change until just before the date wiien he made appli- 
 cation for the last certificate. He was unable to obtain frotn 
 the owners of these buildings the requisite number of consent)? 
 for his second certificate and thereupon five structures were 
 drawn and placed upon a piece of land within the prescribed dis 
 tance, from the owner or owners of which consents were obtained 
 and used upon the application for the last certificate. These 
 structures were built somewhere else and drawn upon the land 
 in question. They had no foundations and were of a most tem- 
 porary and unsubstantial character. Riley in various waya, 
 directly and indirectly, was a party to bringing and placing them 
 upon the land and filling them with occupants. It is claimed by 
 the applicants that they were not " buildings occupied exclusively 
 for a dwelling," within the meaning of the statute, but that they 
 were sham buildings constructed and placed there for the purpose 
 of producing necessa.ry consents and really to avoid the pro- 
 visions of the statute. Without, perhaps, admitting all that is 
 claimed by the applicants upon this question, it still was not at 
 all seriously claimed by counsel for Eiley upon the argument that 
 the consents from and in behalf of said buildings should be 
 legally counted or considered for the purpose of sustaining tlie 
 certificate. 
 
 The written application made by Riley for his certificate 
 treated and represented these buildings as buildings occupied for 
 dwellings within the meaning of the statute, and in accordance 
 with the provisions of law he filed simultaneously with his appli- 
 cation a consent covering them. It is claimed by the applicants, 
 and again (except for the reason hereinafter considered) not 
 
Decisions Relating to 
 
 controverted by Riley, that the application and purported con- 
 sents filed therewith constituted, under the various provisions of 
 the Liquor Tax Law, a false statement, for which the certificate 
 may be, in these proceedings, canceled and revoked. 
 
 The reason above referred to and now urged why such law 
 and penalty is not applicable to this case is as follows : Riley, as 
 above stated, in 1896 obtained the necessary consents to have 
 issued to him his first certificate, and it is to be assumed that 
 those consents were in the ordinary legal form. Intermediate 
 that time and the date of his application for the second certificate 
 subdivision 8, section 17 of the Liquor Tax Law covering this 
 subject had been amended by adding the pi-ovisions (Laws 1807, 
 chapter 312) : " "SA'lienover the consent required by this section 
 .shall have been obtained and filed as herein provided, unless the 
 same be given for a limited term, no further or other consent for 
 trafiScking in liquor on such [ncmises shall be required so long as 
 such premises shall 1)p continuously occupied for such traffic.'' 
 It is urged that this provision just quoted exempted Riley from 
 the necessity of obtaining any consents upon his last application, 
 and tliat. therefui-e, althouiili he did attempt to obtain them, and 
 did base an aji]ilicati(in on them, still if Hiey were unnecessarj 
 and he was entitled to a certificate without them, he should not be 
 charged with any offense in respect to them, or his certificate 
 canceled i'oi- the reasons iK^veinbefore set forth. TJiis contention 
 seems to un^ to involve mainly llie question whether the amend- 
 ment aho\-e quoted was vetroacti\e and covered consents obtained 
 before it was i)asse(l. If 11 was and did so do, then the defend- 
 ant's argument would seem to be well founded, but I do not 
 believe such to !)<> tlie case. While it rested entirely with the 
 legislature to give or not to give the inhabitants of surrounding 
 d\\'ellings a voice in deciding whether a liquor tax certificate 
 should be issued, and while very likely the giving to them of such 
 voice would not grant a vested right which could not be taken 
 away even by retroactive law, if the legislature saw fit, still the 
 legislature having included this feature in the general law, it 
 should not be held to be taken away certainly by retrospective 
 law unless such intention clearly appeared. Prior to the passage 
 of this amendment and at the tiiue the first consents were 
 obtained there was nothing in the statute with reference to con- 
 sents "for a limiied lerm," or lo indicate that a person giving 
 a consent to the issuing of one certificate was to be bound therebv 
 
Liquor Tax Law 223 
 
 for ull future time. It is true, as uri;e(l by the counsel for tbe 
 defendant, tliat a law which compelled a person desiring ta 
 engage in this traffic, and having obtained his certificate, and 
 having erected, perhaps, an expensive building, to take the risk 
 of not being able to obtain consents for another certificate the 
 succeeding year might result in hardship. But this seems lo 
 have been the law when the defendant obtained his first certifi- 
 cate, and it would now be somewhat severe in the opposite direc- 
 tion to so bind by the provisions of a retroactive statute those 
 persons who gave their consents for a short time as to make me 
 latter permanent and continuing. 
 
 Tlie provisions of a statute are not to be treated as retrospec- 
 tive unless the intention to have them so is clearly indicated, and 
 this applies as well to an amendment of as to an original statute. 
 McMaster v. State, 103 N. Y. .547, 554 ; Matter of Miller, 110 id. 
 216; Ely v. Holton, 15 id. 595. 
 
 The application, therefore, is granted. 
 
 Application granted. 
 
 Supreme Court, Kings Special Term, October, 1897. Reported. 21 IVIisc. 504. 
 In the Matter of the Application of Euland. 
 
 1. Liquor Tax Law — Consents — Dwellings occirpied exclusively as such. 
 The provisions of section 17 of the Liquor Tax Law, requiring an 
 
 applicant for a license to procure the consent of the owners of "at least 
 two-thirds" of the "building or buildings occupied exclusively for a 
 dwelling" within a 200-foot limit of the proposed saloon, include, in 
 making an estimate of the number of consents required, vacant dwellings 
 designed exclusively for occupation as dwelling-houses and also a house 
 where a dressmaker, displaying no sign, does sewing; but exclude a 
 building used mainly as a grocery store. 
 
 2. Same — Measurement of 200-foot limit. 
 
 The statutory direction that the 200-foot limit shall be determined by 
 measurement, "in a straight line," between those entrances of the saloon 
 building and of the dwelling which are nearest together, means the length 
 of a straight line, running from one entrance to another, regardless of the 
 intervening obstructions. 
 
 Application by a citizen for the revocation of a liquor tax cer- 
 tificate, pursuant to section 28 of the Liquor Tax Law, on tlie 
 
--4 L>BcisioNS Relating to 
 
 ground that it was falsely stated in the application that the 
 owners of two-thirds of the dv.ellings, within two hundred feet, 
 had consented. 
 
 C. A. Haviland, for petitioner. 
 
 J. W. Ridgway, opposed. 
 
 Gayxor^ J. There were at the time of the application for the 
 liquor tax certificate twenty-one buildings ordinarily occupied 
 exclusively for dwellings, within the two hundred feet limit. 
 This leaves out I'SS (ireene avenue, which is the entrance to the 
 rear of the building ;j78 t,']ass(jn avenue, mainly used as a grocerj' 
 store. It includes oS(i Cla^son avenue, which is a boarding- 
 house. Two of .said dwellings, \ iz., 401 and l!70 Classon avenue, 
 were vacant at the time of such application. The tenant of 303 
 Greene avenue is a (iressmaker liy irad(N and does more or less 
 sewing in the house, but lias no sign out. This does not make 
 it partly used for business. A mechanic may do work in his 
 dwelling for others witliout making it no longer exclusively a 
 dwelling. The slaiulc requires the applicant to get the consent 
 of the owners of '' at least two-thirds " of the " building or build 
 ingw occupied exclusively for w dwelling" within the two hundred 
 feet limit. I construe tliis to include buildings constructed and 
 meant for such exclusive occupation as dwellings. In the case of 
 a new street or block of dwellings not yet let, I do not think the 
 owners of such dwellings may be ignored by an applicant for a 
 liquor tax certificate. That might en:ible such a certificate to be 
 obtained without any such consent. I therefore include the 
 vacant dwellings. 
 
 The applicant obtained the consent of the owners of thirteen 
 of the said twenty-one dwellings, and thus falls short of two 
 thirds. The grocery-store building has to be omitted. 
 
 The statute requires the two hundred feet limit To be deter 
 mined by measurement " in a straight line " between the 
 entrances of the saloon building and the dwelling which are 
 nearest together. Measurements along the ground to the foot of 
 the stoop, and then at an angle up the stoop to the front door, 
 would in the case of two dwellings put them outsifle the two 
 hiindred feet limit. I do not think such a measurement is in a 
 straight line within the meaning of the statute. I think the 
 
LiijuoR Tax Law 2l!5 
 
 actnal length of a straight line stretched from one entrance to 
 the other, regarded as running through all obstructions in the 
 course, is the measurement re(|uireil. The application has to be 
 granted. 
 
 Application granted. 
 
 Supreme Court, Saratoga Special Terrr. Reported. 48 N. Y. Supp. 1035. 
 
 Henry H. Lyjian v. John Mc Grievey. 
 
 Niissbaum & Coughlin, for plaintiff. 
 
 Thomas O'Connor, J. W. Atkinson (.J. ^A'. Houghton of coun- 
 sel) for defendant. 
 
 McLaughlin, J. The x»laintitf is not entitled to maintain this 
 action unless the population of the village of Waterford is shown 
 by either the last State or Federal census. It is conceded that 
 it is not shown by the former, but it is urged that it can be 
 determined from the latter. Does the last Tfnited States census 
 show the fiopulation of this village? The answer to this inquiry 
 must be determined from the census and that alone. It cannot 
 be determined from anything else; and resort cannot be had to 
 other evidence for the purpose of determining it. This was the 
 view taken and the construction given to the statute under con- 
 sideration by this court in the case of People ex rel. Ci-amer v. 
 Meclbury, 17 ^lisc. Re[). S. The printed compendium of the 
 United States Census as sent out by the United States govern- 
 ment does not show it. And, without now passing upon the 
 question whether resort can be had to the schedules of records 
 made by the enumerators for the purpose of showing that the 
 printed compendium or official record is incorrect, I do, for the 
 purpose of this case, consider these schedules, and have reached 
 the conclusion that the population of this village is not thus shown. 
 The returns of the enumerators offered in evidence is of the town 
 of Waterford and not of the village of Waterford. They do not 
 purport to be an enumeration of the village, and can only be con- 
 sidered such in the sense that ilie greater includes the less. 
 The population of this village at the time the last Federal census 
 
I'l'li Deciskj.xw Rblatix(j to 
 
 wa.s takeu cannot be determined li-oni ilie schedules. It can only 
 he determined, il' at all, by using them in cdnnection with other 
 evidence, and this the statute does not permit. TIk- method pvo- 
 vided lor determining the population of a given city or village 
 under chapter 112 of the Laws of IS'Mi is a fixed and arbitrary 
 one. The legal intent in thus fixing it is manifest; it is not only 
 to regulate the trallic in li(|uors, but also to provide, with as little 
 expense as jiossilik', a revenue for the State. Heme, the provision 
 that the tax to be paid by a city or village shall be determined 
 by the population as shown by the last State census ; or, if not 
 thus shown, then by the last Federal census; and, if not shown by 
 either, then the amount fixed by the statute itself. 
 
 Tlie plaintiff, however, ((intends that the population of this 
 village is established by the certificate of Donnell (Plaintiff's 
 Exhibit 2). This official certifies that the paper attached to the 
 certificate " is a statement as nearly correct as can be ascertained 
 from the poijulation schedules." But the population schedules, 
 so far as the same relate to the village of Waterford, were put 
 in evidence ; and whether or not such schedules show the popula- 
 tion of that village, must be determined by the court and not 
 by the conclusion of any witness or official. It has always been 
 held that the construction of an instrument when the instrument 
 itself is i)ut in evidence, is for the court. (United States v. Ames, 
 99 U. S. 45; BonneU v. (Irisirold, tis N. Y. 291; Buffalo Catholre 
 Jnstitutr V. Bitter, ST X. Y. 2.'iO ; Boganltis v. Xeic York Life Ins. 
 Co.. 101 N. Y. :>28.) Authorities to this effect are numerous and 
 decisive. Therefore, when this piece of evidence is construed in 
 connection with the schedules upon which it purports to be based, 
 it at once becomes apparent that nothing is added to or taken 
 from the schedules. Indeed, the certificate throws no light what- 
 ever upon the real matter under consideration. 
 
 The defendant insists that the certificate of Donnell (I'lain- 
 tiff's Exhibit 2 ) cannot be considered as evidence. The admission 
 of this certificate as evidence was objected to by defendant, and 
 at the close of the trial a motion was made to strike it out, and, 
 by consent of counsel, the disposition to be made of the motion 
 was reserved until this time. I think defendant's motion should 
 be granted. Section 944 of the Code of Civil Procedxire provides: 
 "A copy of a record or other paper remaining in a department of 
 the government of the United States is evidence when certified by 
 the head, or acting chief officer, for the time being, of that depart- 
 
LiQuoE Tax Law 227 
 
 ment; or when certified by tlie officer in whose charge it is, 
 pursuant to a statute of the United States, or otherwise in 
 accordance with a statute of the United States relating to certify- 
 ing the same * * *." This exhibit is not a copy of any 
 record or other document remaining on iile in any department of 
 the United States. It is simply an attempt on the part of an 
 official to give his conclusions as to what a record on file contains. 
 Under the statute referred to an ofificer can certify to the correct- 
 ness of a copy of a record on file, but the court must determine 
 what the record contains and what its legal efEect is. Por these 
 reasons I strike out this exhibit and give the plaintiff an excep- 
 tion; and, with this evidence stricken out, there is nothing what- 
 ever to show what the population of the village of Waterford is. 
 The conclusion thus reached renders it unnecessary to pass upon 
 the other question presented. 
 
 It follows that the complaint must be dismissed. 
 
 Supreme Court, New York Special Term, October, 1897. Unreported. 
 
 In the Matter of the Petition of Oarolixe A. Livixgston to 
 
 Revoke a Liquor Tax Certificate of John Shady. 
 
 \ 
 
 Russell, J. The evidence justifies the claim of the petitioner 
 that the applicant for the liquor tax certificate did not file a 
 consent that traffic in liquor be carried on in his premises signed 
 by two-thirds of the owners of the buildings occupied exclusively 
 for dwellings, the nearest entrance to which was within two 
 hundred feet measured in a straight line, to the nearest entrance 
 of the premises where the liquor traffic was to be carried on. 
 Nor is the tax certificate of that character of property which 
 required a trial by jury before it can be rescinded. The certifi- 
 cate is created by force of a law which regulates its issuance, 
 and is subject to the provisions of that law as to its validity and 
 cancellation. The applicant takes it with all its privileges, but 
 subject to all the burdens of the law. 
 
 Motion granted with costs. 
 
L'L'S Decisions l{Ki,ATii\(; to 
 
 Supreme Court, Suffolk Special Term, November, 1897. Unreported. 
 
 Edward GI^'u r. John Siieuuv, as Tr(':isnr('r of Suffolk County. 
 
 Maddox. J. Plaintiff to obtain a liquor tax certificate to traffic 
 in liquors in the village ot (Ireenport, on or abunt May 1, 1896, 
 paid to defendant's iiredeccs , r in ollice a tax of .^iIOO, when by 
 the terms of the "Liquor Tax Law" the tax therefor was but 
 |100. The certificate issued recited the payment of -SiOO " f or 
 excise tax." About July 10, IS'llI, plaintiff made demand upon 
 defendant's predecessor for (he return to him of such excess 
 jiayment of .1*1(10, and about March ~), ISiiT, delivered to defendant 
 such liquor tax certificate and received from defendant a certifi- 
 cate of the sairic j^rade, covering the same ]ierioil, and for the 
 same place, reciting the iKiynient of .flOO " for excise tax"; and 
 also received what was known as a " duplicate surrender receipt " 
 for flOO, payaient of which has been demanded of defendant and 
 refused. 
 
 Defendant contends that the d, livery of the certificate was a 
 surrender thei-eof foi' cancellatio'.i as contemplated by section 2.5 
 of the "Liquor Tax Law" and I hat the payment of such excess 
 sum of |100 must be in the m 'unei- proxideil by that section as 
 amended by chapter 312 of the Laws of IS'.iT. 
 
 To this view I cannot assent since plaintiff did not "volun- 
 tarily cease to traffic in liquors during the term for which such 
 tax was paid," nor did he seek a " refund of the /)/i) rata amount 
 of the tax paid for the unexpired term of such tax certificate.'' 
 Quite on the conti-ary, for he continued such traffic; what he 
 sought was the repayment of the sum wrongfully exacted from 
 him upon his application for the certificate necessary that he 
 might do business under the terms of that act, and the certificate 
 was surrendered to the end that his claim might be adjusted. 
 
 It is true that by section Li of the " Li(|uor Tax Law " the taxes 
 shall be apportioned and paid by the collecting officers " within 
 1en days from the recei])t thereof" to the proper fiscal officers; 
 but that section, in my opinion, has no application here as the 
 excess payiiumt of flOfl was no part of the tax required by the act 
 and the plainlilf has not asked repayment of any part, as a 
 refund or otherwise, of such tax as fixed by subdivision 1 of 
 section 11 of the act. 
 
LmuoR Tax Law 229 
 
 The action Avas, in iny judgment, properly brouglit and is 
 plaintiff's only remedy. 
 
 Judgment lor plaiutitl with costs. 
 
 Supreme Court, New York Special Term, November, 1897. Unreported. 
 
 Tn the Matter of the Petition of George Hilliaed as Special 
 Deputy Comr. of Excise, to Enjoin Annie Giese from Traflick 
 ing in Liquors. 
 
 Lawrence^ J. It was long ago held by the Court of Appeals 
 that 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 (;:;onstitntion of the TTnited States, 
 but that such licenses are mere tempor;u-,y permits to do what 
 otherAvise would be unlawful, and are not property in any- legal 
 or constitutional sense (JIcfrcpDlitaii. Board of Excise v. Barrie, 
 34 N. Y., page 67.) It, therefore, follows that, notwithstanding 
 the payment of the license fee by the defendants in these cases 
 and the reception of licenses thereunder before April 20, lSi97, it 
 was within the power of the legislature to pass the act, chapter 
 . 312 of the Laws of 1897, amending chapter 112 of the Laws of 
 1890, authorizing a special enumeration of the inhabitants of 
 territory annexed to a city for the purpose of determining the 
 amount of the excise tax to be paid by one engaged in the busi- 
 ness of selling liquors. The affidavits before me bring these cases 
 within the provisions of the statute. They show that the special 
 enumeration of inhabitants contemplated by the statute has been 
 made and thereunder the annual license fee which the defendants 
 are called upon to j)ay has been increased to the sum of |350. 
 By section 29 of the act of 1S9G, as amended by chapter 312 of 
 the Laws of 1897, an injunction may be granted by this court 
 against any corporation, association, copartnership or person 
 who shall unlawfully traffic in liquors without obtaining a liquor 
 tax certificate, as provided by this act, or shall traffic in liquors 
 contrary to any provision of this act. Until the defendants have 
 paid the license fee prescribed by law they are trafficking in 
 liquors contrary to the provisions of this act. On the argument 
 
'SM Decisions Relating to 
 
 somethiug was said about the hardship of these cases. With 
 that consideration I have, of course, nothing to do. The statute 
 is one which the k'oi.slature, as lias ))C'en lie(iuently determined,. 
 was ( onipetent to pass, and the court must obey its directions. 
 Whether, under section '2<r, of the Act of 1896, as amended in 
 181)7, if the defendants do not desire to continue business they 
 ^v(>uld not be entitled to surrender their licenses, and receive 
 back the whole or a portion of the money paid by them before 
 the passage of the latter act, for their certificates, is a question 
 which does not necessarily arise on these motions. 
 
 Motions granted, but without costs. 
 
 First Appellate Department, November, 1897. Reported. 22 App. Div. 77. 
 
 The I'eopijE op the State oe New York, Res])()ndent, v. Patrick 
 ("kotty. Appellant. 
 
 Liquor Tax Law — An Indictment under, for selling liquor on Sunday — 
 It need not negative exceptions in favor of a pharmacist or physician. 
 An indictment for a violation of the Liquor Tax Law (Laws of 1896, 
 chap. 112, § 31), which forbids the sale of liquors on Sunday by any corpor- 
 ation or person, need not negative the two exceptions contained in a 
 subsequent clause of that section in favor of pharmacists and hotelkeepers. 
 Van Brunt, P. J. dissented. 
 
 AepEAL by the defendant, Patrick Crotty, from a judgment of 
 the CViurt of General Sessions of the Peace in and for the city and 
 county of New York, rendered on the 18th day of February. 1897, 
 convicting him of selling liquor ou Sunday. 
 
 Stc.phrii J. O'Hair. for the appellant. 
 
 Jdhn D. LiiKtsdi/, AsNislniit District-Attorney, for the respon- 
 dent. 
 
 Ingraiiam, J. The defendant was indicted for a violation of 
 section 31 of chapter 111! of the Laws of lS!)(i, the Liquor Tax 
 Law. By that section it is provided that " It shall not be lawful 
 
Liquor Tax Law 231 
 
 for auy corporation, association, copartuersliip or person, whether 
 liaving paid such tax or not, to sell, offer or expose for sale, or 
 give away any liquor, on Sunday, or before five o'clock A. M. on 
 Monday." The indictment charged the defendant with having 
 unlawfully sold to one Harvey D. (Jorey and to certain other 
 persons whose names are unknown, liquor on the 13th day of 
 August, 1896, the same being Sunday. 
 
 There was no demurrer to the indictment, nor did the defendant 
 ask the court to advise the jury to acquit; but, after the con- 
 viction, the defendant moved tor an arrest of judgment on the 
 ground that the facts stated in the indictment did not constitute 
 a crime. It is now claimed that this motion in arrest of judg- 
 ment should have been granted; as, to constitute a crime, the 
 facts stated in the indictment should have negatived the two 
 exceptions contained in the section of the statute before referred 
 to. The section contains the following provision after the pro- 
 vision befoi'e referred to: '' But the jirovisions of clauses ' a,' ' b,' 
 ' c " and ' d " of this section are subject to two exceptions, as 
 follows." The first of these exceptions relates to a pharmacist, 
 who may sell liquor upon the ])res(ription of a physician; and 
 the second to a holder of a liquor tax certificate who is keeper 
 of a hotel, and who may sell liquor to the guests of the hotel 
 with their meals, or in their rooms or apartments, but not in 
 the barrooms or other similar rooms of the hotel. 
 
 Assuming that this objection to the indictment could be raised 
 upon a motion in arrest of judgment, we do not think that the 
 objection is well taken. The statute expressly provides that it 
 shall not be lawful for any corporation, etc., to sell, offer or 
 expose for sale, or give away, any liquor on Sunday, and at 
 various other times and places subsequently specified in the 
 section. These provisions are general. They apply to all 
 persons, whether they have paid a tax or not, and the exceptions 
 relate only to persons engaged in two particular occupations — a 
 pharmacist and a hotel-keeper. 
 
 The rule is stated in the case of Jefferson v. The People (101 N. 
 Y. 21) as follows: " It is no doubt a general rule that if a statute 
 forbids the doing of any act, without the authority of either one 
 of two things, the indictment must negative the existence of both 
 before it can be supported, and it is well settled that, if exceptions 
 are stated in the enacting clause, it would be necessary to nega- 
 tive them in order that the description of the crime may 
 
Dioi'isioNS Relatim/ to 
 
 cturcsiHiiul Willi the slatnle; but if there be an exception in a 
 subsequent clause ov siilise(iiieiit stalute, that is inatlei- of defense 
 and iis to be shown by the defendant." A])plyin;^ this rule, it is 
 clear that the exeejition is not staled in the enacting clause. This 
 clause makes it unlawful lo sell, olfer or expose for sale, or give 
 away, any liquor on Sunday. The exception is conlained in a 
 subsequent clause, which allows jiersons engaged in the business 
 of a pharmacist, or of hotel-keeper, under certain conditions, to 
 sell liquor on Sunday. If the defendant sold the liquor, for the 
 sellini; of which he M'as indicted, within either of the exceptions, 
 it was a matter of defense, and was to be shown by him. (See 
 also, Fleming v. Tltc I'l'ople. '27 N. Y. :>-'.).) 
 
 The other exceptions lakeii by the defendant do not require 
 notice. There was no excei)tion to ;iny particular portion of the 
 charge, and the general exceplion taken liy the defendant pi-esents 
 no (]uesiion for review. 
 
 W'v do not think till' cli;ir;;e of the learned trial jndne deprived 
 the jury of the exclusi\e right to judge of and deride the ques- 
 tions of lart, nor do we tiiink that tlnre was any error upon the 
 trial which requires us to reverse the jnili^nient. 
 
 The claim of the defendant, that the statute imposes an exces- 
 sive tine ujion conviction, is clearly untenalde. 
 
 The jndgnienl appealed from should be aitirmed. 
 
 Er.MsEY, I'AirjousoN and ( )i'.i:ii:x, JJ.. concurred; Van Brunt. 
 P. J., dissented. 
 
 ^'AN Brunt, V. J. (dissenting) : 
 
 I dissent. The charge is in direct conflict with the rule laid 
 down in the case of JlcKtiiini v. 7'//c I'cnplc (SI N. Y. 3(50). 
 
 Judgment afiSrmed. 
 
Liquor Tax Law 233 
 
 First Appellate Department, December, 1897. Reported. 24 App. Div. 51. 
 
 In the Matter of the Petition of Caroline A. Livingston^ 
 Respondent, to Revoke and Cancel the Liquor Tax Certificate 
 Issued to John Shady, Appellant. 
 
 A liquor tax certificate is property — ^Tiie holder is not entitled to a jury 
 trial on an application for its cancellation. 
 A certificate, issued under tlie Liquor Tax Law (Laws of 1896, cliap. 112, 
 as amended by chap. 312, Laws of 1897), is made property by the Tax 
 Law, which may also provide for its cancellation without giving the holder 
 a trial by jury of the questions presented on the application therefor. 
 
 Appeal by John Shadj' from an order of the Supreme Court, 
 made at the Xew York Special Term and entered in the office of 
 the clerk of the county of New York on the 2-jd day of October, 
 1897, revoking and canceling a liquor tax certificate issued to the 
 said John Shady. 
 
 James A. Dunn, for the appellant. 
 
 Ro'bert A. B. Dayton, for the respondent. 
 
 Williams, J. The proceeding was instituted by a citizen resid- 
 ing within two hundred (200) feet of the premises licensed, under 
 subdivision 2, section 2S of the Liquor Tax Law (Laws of 1896, 
 chap. 112, as amended by Laws of 1897, chap. 312 ) , to revoke tho 
 certificate, on the ground that the applicant did not file with 
 the application for the license the consent that traffic in liquor 
 be carried on in the premises signed by two-thirds of the owners 
 of buildings occupied exclusively for dwellings within two 
 hundred feet of the place licensed, as required by subdivision 8, 
 section 17 of the Liquor Tax Law. 
 
 The application stated that there were but three owners of 
 such buildings, and the applicant filed the consent of two of the 
 three. The evidence given in this proceeding showed beyond 
 question that this statement in the applic;ition was untrue, and 
 that the consent of two-thirds of such oAvners was not filed with 
 the application, and the court very properly made this order 
 revoking the license for that reason. 
 
 It is said, however, that, before the applicant could be deprived 
 
SM I )10CIS1II.\S lilOLATlXC TH 
 
 111' lii.s wrtiticale, he was ciitil led to ha\ i- a Irial liy jury imflev 
 the Constitution; that tlie certificate was property, and lie could 
 iH.l be deprived oL' such property witliout due jirocess of law. 
 ^^'e have held that these certlticates are properly. {I'coph: v. 
 Dimtntc, 19 App. Div. 2i)2. ) They were made such by virtue ol 
 the provisions of the Liquor Tax Law, but the legislature, which 
 i;ave the certificate the character of property, had power to and 
 did by the same act provide both for their issuance and cancel- 
 lation, and under what circumstances they should be valid, anf^ 
 when and how they might be revoked. The character given them 
 as property was subject to all these provisions attached to them 
 when they were created. Applicants take them with all the 
 privileges and subject to all the burdens imposed upon them by 
 the Liquor Tax Law. 
 
 The order appealed from should be allirmed, with costs. 
 
 Van BituNi', 1'. J., rAiriiRsox, O'Bkiex and Ingraiiam, J.J., 
 concurred. 
 
 Order affirmed, with costs. 
 
 Fourth Appellate Department, December, 1897. Reported. 24 App. Div. 233. 
 
 The ricorr.E nv the State ok New York,, Respondent, v. William 
 H. Hn FMAX, Appellant. 
 
 Indictment under the Liquor Tax Law — Allegations as to different sales — 
 Where an indictment charges an illegal sale to two persons jointly, 
 proof of a separate sale to each one of them is Improper. 
 
 An indictment, drawn under the Liquor Tax Law (Laws of 1896, chap. 
 112, §11), which charges that, on or about the 26th day of March, 1S96, 
 the accused sold and delivered liquor in quantities less than five gallons 
 to two persons named, as well as to divers other persons unknown, with- 
 out having complied with the law relative to the payment of the tax and 
 the posting of a liquor tax certificate, is not demurrable as charging more 
 than one crime. 
 
 The Liquor Tax Law (Laws of 1896, chap. 112. § 33) provides that "each 
 violation of any of the provisions of this act shall be construed to con- 
 st itnle a separate and complete offense," and under an indictment 
 c! ar:;ing a sliIc to two persons jointly, two independent sales, one to 
 each of surli parties, can not be proved. 
 
Liquor Tax Law 235 
 
 Appeal bj the defendant, William H. Huffman, from a judgment 
 'of conviction of the County Court of Allegany county, entered in 
 the office of the clerk of the county of Allegany on the 18th day 
 of December, 1S9G, convicting him of the crime of violating the 
 Excise Law, and also from an order entered in said clerk's office 
 on the 18th day of December, 1896, denying the defendant's motion 
 for a new trial made upon the minutes. 
 
 A grand jury of Allegany county, on the 12th of June, 1896, 
 presented an indictment against the defendant charging him with 
 the " crime of selling liquor in quantities less than five gallons at 
 a time, without having paid a tax, as provided by section 11 of 
 chapter 112 of the Laws of 1896, and obtained and posted a liquor 
 tax certificate as provided by the said statute, which crime is thus 
 defined by sections 31 and 31 of the said statute, and was com- 
 mitted, as follows : The said Wm. H. Huffman did, on or about the 
 26th day of March, 1896, at the town of Friendship, in the county 
 of Allegany aforesaid, wilfully * * * sell, and cause, suffer 
 and permit to be sold, liquor in quantities less than five gallons at 
 a time, to James Whalen and C. H. Robinson, and to divers other 
 persons and to divers persons to the jury aforesaid unknown, and 
 did then and there unlawfully deliver and cause to be delivered in 
 pursuance of such sale to the said James AVhalen and C. A. 
 Robinson, and to said divers other persons and to said divers 
 persons to the jury aforesaid unknown, liquor, to wit, one pint 
 distilled spirits, * * * without having paid a tax therefor, 
 and obtained and posted a liquor tax certificate as required by 
 the provisions of chapter 112 of the Laws of 1896, contrary to 
 the form of the statute. * * * » 
 
 The defendant interposed a demurrer to the indictment on two 
 grounds: "First. The indictment charges more than one crime, 
 contrary to section 278 of the Criminal Code, to wit, it alleges the 
 sale of liquor to one James Whalen and to one C. H. Robinson, 
 Second. That the indictment does not conform to the require- 
 ments of sections 275 and 276 of the Criminal Code." The 
 demurrer was overruled, and the defendant pleaded not guilty, 
 and a trial was had on the 5th of December, 1896, in the County 
 Court of Allegany county. 
 
 Fuller & Rice, for the appellant. 
 
 Charles E. Broirn. District Attorneif, for the I'espondent. 
 
I'oG DucasiuNS Km.Aj'iNc; to 
 
 Haedin', V. J.: It is prdvided in si'cliou 21~, of the (Jode ol 
 Ci-iminal rnnedure tliat the inlirlinent must contain "a plain 
 and concise statement of the act cDiistituting the crime witliout 
 unuecessary repetition." 
 
 In section '27S of tlie Code of (Criminal Procedure it is provided, 
 viz. : ''The indictment must charijc but one crime and in one form, 
 except as in the next section ])r()vided."' 
 
 Section '211) of the < 'ode of Criminal I'rdcedure provides, viz.: 
 "The crime may be charged in separate counts to have been com- 
 mitted in a (Jiffcrciit manner or by different means; and where the 
 acts complained of may constitute different crimes, such crimes 
 may be charged in separate counts." 
 
 These sec1i<iiis have lately been construed by the Court of 
 Appeals in Pvoplc v. lT'/7so;(, l.")! X. Y. 40:!. In the case cited it 
 has been held that the elfect of the provision of section 279 of the 
 Code of Criminal Procedure, that " '-wlici-c the acts complained of 
 may constitute different crimes, such crimes may be charged in 
 separate counts,' constitutini;- an exception to the provision of 
 section '21S that 'the indictment must charge but one crime,' is to 
 permit a continuance of the former ])ractice of joining different 
 crimes by separate counts when tliey all I'elate to the same 
 transaction."' 
 
 '•The act" constituting the crime alleged in the indictment 
 against the defendant is that he "did, on or about the 2()th day of 
 March, Isix;, » * * g^i]^ .|,j(| cause, suffer and permit to be 
 sold, liquor in quantities less than Ave gallons, * * * and 
 did, then and there, unlawfully deliver and cause to be delivered, 
 in pursuance of such sale, to the said James Whalen and C. 
 A. Robinson, and to said divers otlier jHasons, and to said divers 
 persons to the jury aforesai'l unknown, liquor, to wit, one pint 
 distilled spirits (and other enumerated kinds of liquor) without 
 having paid a tax therefor, and obtained and posted a liquor tax 
 certificate as required by the provisions of chapter 112 of the 
 Laws of 1 Site." 
 
 In People v. Adams (17 Wend. 17.",) it was held, viz.: " In an 
 indictment for seUinq ajiiritiiDiis liquors tvithout lieensc it is not 
 necessary to sjiecify the names of the persons to whom the sales 
 were made. A count in such an indictment charging the sale of 
 divers quantities of different sorts of liquors to divers citizens of 
 the State, and to divers persons unknown, can not be objected to 
 on error as a count embracing more than one offence; the whole 
 
Lnjuou Tax Law 
 
 will be deemed a siuyle tiaiisactioo. The public i)rosecutor, how- 
 ever, on such a couut may. on the Irial, be confined to the proof 
 of a single oU'ence. An indictment charging an offence on a 
 jiarticular day, and also oit, (?/rcy.s oiJur days, is good; a duij 
 (xrtd'ni being alleged, the residue will be rejected as surplusage." 
 
 In the indictment before us only one day is mentioned, to wit, 
 the 26th of Marcli, 1896. 
 
 In the course of the opinion delivered in People v. Adqms 
 {supra) Nelsux, Ch. J., said: "It is to be remarked that the 
 offense upon the statute consists in the act of seUini/ the spiritu- 
 ous liquors without the license, and, therefore, the designation of 
 the persons to whom sold is in no way material to constitute it. The 
 cjuestion is simply one of pleading whether certainty to a common 
 intent requires the names of the pers<uis to be given to whom the 
 liquor was sold." 
 
 Although the indictment in that case averred that the defendant 
 sold by retail "to divers citizens of this State, and to divers 
 ]iersons to the jurors al'oresaid unknown, and did deliver, in pur- 
 suance of such sale, to the said divers citizens, and the said diver,'; 
 persons to the jurors al'oresaid unknown, strong and spirituous 
 liquors," to be drank in the house of John Adams at the city of 
 Utica, the learned judge in that case observed that the claim that 
 the count contained more than one offense could not be sustained, 
 and he adds: "Upon our view of the time when the ofl'ence is laid 
 in the indictment, that is, upon the day given, but one sale by 
 retail is to be deemed charged in the count; the three gills of 
 brandy, three gills of rum, etc., are to be viewed as having been 
 sold at one and the same time, and as constituting but one trans- 
 action. * * * If we strike out the words 'divers days and 
 times,' etc., as we have seen may be done, or, in other words, as 
 the defendant mtiy require the prosecutor to confine his proof on 
 the trial the same as if they were expunged, then but one offence 
 is charged in the count, and the conviction can not, of course, 
 extend beyond it; a single sale of the quanlity of liquor mentioned, 
 to divers citizens of the State, and to divers persons unknown," 
 etc. That case was referred to with appr()\'al in Osi/ood v. The 
 People (39 N. Y. 451), which latter case was decided in 1868, 
 before the passage of the Code of < 'riminal Procedure. 
 
 The indictment is quite unlike the one under consideration in 
 People V. O'Doniiell (46 Hun, .360). In that case the indictment 
 alleged sales on four different days, naming them. 
 
2',\S DECISION'S Relating to 
 
 We are of the opinion that no error was committed in over- 
 ruling the demurrer to the indictment. 
 
 (2) Upon the trial, the People called as a witness James 
 Whalen, who testified that he went into the defendant's hotel on 
 the 26th of March, 1896, and that the bartender was behind the 
 bar, in the barroom, at the time. The witness adds : " I told him 
 I wanted a half pint of whiskey. He passed it right out, and 
 I paid him twenty-five cents. * * * That was the first I was 
 in that house that day. I had two half pints. That was about 
 two o'clock; the other time, about half -past three the same day, 
 I again went into the hotel. I went to the barroom. I saw the 
 same person behind the bar. I got a half pint of whiskey. 
 * * * I took it and put it in my pocket. I got it of Mr. 
 Coleman (the bartender), and paid twenty -five cents for it." In 
 the course of his cross-examination the witness stated that he 
 was acquainted with C. H. Robinson, and he adds : " I did not 
 see him the day I got the whiskey. He had nothing to do with 
 the purchase of that whiskey.'" 
 
 It appears by the evidence that Archie Worden participated 
 in drinking the whiskey that was purchased by Whalen, and 
 that he was placed in the lockup, and that certain proceedings 
 were instituted before one W. H. Scott, a justice of the peace, on 
 the day after the alleged sale of the whiskey, or the day there- 
 after, and an affidavit was made before the justice by Whalen 
 which was received in evidence, without objection, before the 
 trial closed, and in that affidavit Whalen says, viz. : " On the 
 26th day of JIarch, 1896, I went into the said hotel, to wit. The 
 American House, at the town and village of Friendship, 
 Allegany county, and then and there bought of the bartender, in 
 the said house, two one-half pint bottles of Avhiskey. I know it 
 was whiskey, as I drank a large portion of it myself. I was 
 somewhat intoxicated at the time I got this whiskey. I bought 
 it of a man behind the bar in said hotel, whose name I do not 
 know, but he was a short, thick-set man. I paid twenty-five 
 cents for each half pint I got there." 
 
 The testimony of Whalen, coupled with the affidavit, which 
 was received without objection, clearly established, if credited, a 
 violation of the statute, and that it occurred on the 26th day of 
 March, 1896, as alleged in the indictment. 
 
 In section 31 of chapter 112 of the Laws of 1896 it is provided : 
 " It shall not be lawful for any coriioration * * * qj. person, 
 
Liquor Tax Law 239 
 
 which, or who, ha.s not paid a lax, as provided in section cU-ven of 
 this act, and obtained and posted the liquor tax certificate, a.s 
 provided in this act, to seU, otter or expose for sak-, or i;ive away 
 liquors in any quantity less than five wine gallons at a time ; nor, 
 without having paid such tax and complied with the provisions 
 of this act, to sell, offer or expose for sale, or give away liquor in 
 any quantity whatever, any part of Avhich is to be drunk on the 
 premises of such vendor. * * * '' 
 
 In section 33 of that act it is provided that any person engaged 
 in the traffic of liquors " shall, upon conviction of a violation of 
 any of the provisions of this act, be liable for and sutt'er the 
 penalties imposed therein; * * * and each violation of any 
 of the provisions of this act shall be construed to constitute a 
 separate and complete offense; and for each violation on the 
 same day, or on different days, the person or persons offending 
 shall be liable to the penalties and foifeitures imposed by this 
 act." 
 
 The evidence given as to the purchase made by ^^'halen. if 
 credited, was suificieut " to constitute a separate and complete 
 offense," as declared in the language oT the statute which has 
 just been quoted. 
 
 The People put upon the stand ('. H. Robinson as a witness, 
 Avho testified that in the latter part of ^March he had occasion 
 to go to this hotel, and he was then asked: " Q. Did you have 
 anything to drink there?" The defendant objected to the 
 question on the ground that it was " incompetent and seeks to 
 pro\e another and distinct crime from the one already sought 
 to be proved.'' The witness then added: "I cannot tell you 
 what day it was. Have not very much recollection of the 
 time. Have no means of telling when it was. T was sworn 
 before Mr. Scott." Thereupon the following question was 
 proj.'ounded to him: "<i. l>id you, in that affidavit, state when 
 it was you had something to drink in that hotel?" This was 
 objected to again on the ground that it was incompetent, imma- 
 terial and iri'elevant. The objections Avere overruled and thi- 
 defendant took an exception. The witness answered: " I think 
 the affidavit Avould refresh my mind as to Avhat I did say." There- 
 upon the district attorney put in the hands of the witness a paper 
 and asked him to read it, and then propounded to the witness the 
 following question: "Q. Can you state to the jury when it was 
 you had anything to drink in Huffman's Hotel the latter part of 
 
_'40 DiociKJoNS JiI'Jlatim; to 
 
 Ahirch?" This was objerU'd to by the defendant aw "incompetent, 
 2d. Seeks to ja-dxe a separate and distinct <:i-iiiie from the one 
 already sought to be proved. M. Inadmissible under the indict- 
 ment." The objectiiius were o\erruled and the defendant took an 
 exception. The witness answered : "Some time in .March. It was 
 pre\ions to the prosecution, but can not tell how long before. I 
 guess I did swear how long it '\\as. I guess I can tell what I swore 
 to. It says so in that affidavit. The affidavit was made on the 
 2Sth day of March." The ud lowing ([uestion was then proj^ounded 
 to him: "(i- AVhat was it you did on tlie occasion referred to?" 
 Tiie defendant objected to the question on the ground that it was 
 "immatei'ial, irrele\ant, seeking to prove a distinct crime from the 
 one already sought to be ]>ro\'ed. Inadmissible under the indict- 
 ment." The objections were overruled and an exception taken. 
 The wiliiess answered: "I drank at the bar there; drank beer; and 
 I drank whiskey there. I bounht the whiskey of this young man 
 ( 'oleman. 1 bought one drink of him and I guess I paid ten cents. 
 I'aid it (o Coleman. I was in the habit of going in and out of 
 there sometimes three or four limes a day." 
 
 The language used in the indictment would warrant the con- 
 slrucliou ajipareiilly gi\('n to it by the county judge that the 
 averment was that the sale was to Whalen and Kobinson jointly, 
 which \\-as doubtU'ss the v'ww taken by flu- county judge in order 
 to overcome the objeclions mad(> by the defendant to Ihe indict- 
 ment. (J'(iii)li- V. Hariiioii, 4!) Hun, .''(."iS ; S. (\ affd., 112 N. Y. 
 (ifiii.) 
 
 The reo])le, howe\ci', in producing evidence, gave testimony to 
 the ellVcr of the independeni sale made to Whalen of the whiskey 
 on two different occasions (there being no objection to the second 
 occasion), and when the attempt was made by the evidence of 
 Koliinson to prove another violation, it was apparently to prove a 
 vi(dation not specifically mentioned in the indictment. 
 
 As we have seen, the statute pi-ovides that each violation shall 
 be a complete offense. If the evidenc:- which was offered and 
 received from the witness Robinson is received and considered, 
 then the People are in the attitude of proving an additional offense 
 to the one alleged in the indictment. 
 
 The icfusal of the defendant's counsel to concede that the People 
 had pT'oved one offense by the testimony of AYlialen, does not seem 
 to be an ade(|uate excuse for allowing evidence from Robinson of a 
 distinct, separate, independent violation of the law. 
 
Liquor Tax Laav 241 
 
 Section oo of clia|Jter 112 of the Laws of 189G, providt's that 
 "each violation ou the same day, or on different days," shall sub- 
 ject the person offending "to the penalties and forfeitures imposed 
 by this act." If the evidence of Robinson was competent, then we 
 have an anomalous situation of an indictment alleging a sale to 
 Whalen and Eobinson as a sale to them jointly; proof of sale to 
 Whalen under that indictment and then proof of sale on another 
 occasion to Robinson in the absence of Whalen. 
 
 As already stated, section 275 of the Code of Criminal 
 Procedure prescribes that the indictment shall contain "a plain 
 and concise statement of the act constituting the crime." It will 
 hardly do to allege an act in violation of law by a sale to two 
 persons jointly, and to prove the sale to one independent of the 
 other, and having given such proof of the act constituting the 
 crime, to prove another additional act ; especialh' under a statute 
 which declares that each and every violation of any of its 
 provisions "shall be construed to constitute a separate and com- 
 plete offense" and subject the party accused of a violation "for 
 each violation on the same day, or on different days," to a penalty. 
 {People V. Kranl\ 110 X. Y. 48S; People v. ClutrUneau, 115 id. 
 433, which was commented upon in People v. Wilson, 151 id. 409.) 
 
 If the foregoing views prevail, it will lead to a reversal of the 
 judgment and order and a new trial. 
 
 All concurred. 
 
 Judgment upon the verdict and order denying a new trial 
 reversed and a new trial directed in the County Court of Allegany 
 county, to which county, after entry of judgment in pursuance of 
 section 547, etc., of the Code of Criminal Procedure, the 
 I)roceedings are remitted. 
 
212 I »iO(isi().\s l{i;r.A'j-i.\(; t(i 
 
 Fourth Appellate Department, December, 1897. Reported. 24 App. Div. 309. 
 
 TiiE J'looi'LE OF THE Statio OF Xhw YouK ex rel. CiiAKLEs Ueuell, 
 Ke.spoiideot, i\ Jons F. Kinxey, Sheriff of Xinjiara <."onu1y, 
 Appellant. 
 
 Writ of habeas corpus — Premature, if granted to review a sentence, the 
 imprisonment under a valid requirement of which has not expired. 
 
 A person who is Imprisoned under a sentence for a violation of the 
 Liquor Tax Law, legal so far as it requires his imprisonment for six 
 months, and illegal so far as it requires his continued imprisonment for 
 a certain period after the expiration of the six months, is not entitled 
 until the six months have expired to a writ of habeas corpus to inquire 
 into the cause of his imprisonment. 
 
 Wakd, J., dissented. 
 
 Appeal by the deleudaut, Johu F. Kinnej', sheriff of Niagara 
 founty, from au order of the Supreme Court, made at the Erie 
 Special Term and entered in the office of the clerk of the county 
 of Niagara on the 7th day of ^lay, 18!»7, upon the return to a 
 writ of habeas corpus, directing that the relator be discharged 
 from imprisonment on the 23d day of July, ISUl. 
 
 Further facts are stated in tlic dissenting opinion. 
 
 Abitvr T. Hopkins, Disfrict-AttoDuy, for the appellant. 
 The res]iondent not ai)pearing personally or by counsel. 
 
 FOLLETT, J. : 
 
 The relator was sentenced -lanuary 2:{, ISDT ; the habeas was 
 issued April 11), lS!iT ; and May 7, 1SI)7, the order appealed from 
 was granted and entered, which directed that the rehnor b'-' 
 discharged July 2;>, 1S!»7. It is conceded that the part of the 
 judgment adjudging that the relator be imprisoned for six months 
 is legal and regular. The writ of habeas ^corpus is a writ of 
 liberty, and reliel cauuoi lie grunted by virtue thereof until the 
 i-elatoi- is entitled to his liberly. The jiroceedings were prema- 
 ture, and the writ should have been dismissed. {Tropic i:r re/. 
 <yBi-icH V. Woodirorth, 7S Hun, .")S() ; I'coplv v. Sutton, 2i N. Y. 
 St. Repr. 72*;; S. (1, 6 N. Y. Siipp. 9."); PckjiIv r.r rd. Trainor V. 
 Uakci-, S!) X. Y. 4<;il.) 
 
 The order should be i'e\ersed and the proceedings dismissed. 
 
 All concurred, except \Vard, J., dissenting. 
 
LiQUou Tax Law 243 
 
 Ward^ J. (dissenting) : 
 
 The relator was convicted for a violation of the Liquor Tax- 
 Law on the -236. of January, 1897, in the Niagara County Court 
 and sentenced by that court to be imprisoned in the Niagara 
 county jail at hard labor for the term of six months and to 
 pay a fine of $1,050, or to be imprisoned until the fine was satis- 
 fied, not exceeding 1,050 days. The defendant was a saloon- 
 keeper in Lockport, N. Y. He had not obtained a liquor tax 
 certificate. The amount of tax imposed upon a person trafficking 
 iji liquors as a keeper of a saloon in the city of Lockport was, 
 in the year 1896, after the enactment of the Liquor Tax Law, 
 $350. Before the expiration of the term of imprisonment, and 
 in April, 1897, a justice of the Suineme Court issued a writ of 
 habeas corpus, returnable at a Special Term of that court, fo 
 inquire into the cause of the imprisonment of the relator by 
 the sheriff of Niagara comity and directed to him, which writ 
 was issued upon the petition of the relator alleging that he was 
 illegally detained and imjtrisoued by the slieriff. The sheriff 
 made return to the writ that the relator was in his custody as 
 sheriff and the true cause of his imprisonment and restraint by 
 him was the sentence aforesaid. Upon the hearing of the writ, 
 the court at Special Term made an order Mnj 7, 1897, that the 
 relator be remanded to the sheriff of Niagiira county and there 
 remain until the expiration of six months from Jan. 23, 1897, and 
 upon the expiration of the said term of six months that 
 he be discharged from the custody of the said sheriff. 
 
 The court below held that that portion of the sentence which 
 directed that the relator be imprisoned until the fine was 
 satisfied, not to exceed 1,050 days, was not authorized by law 
 and was void, and for that reason directed that the imprison- 
 ment should cease after the expiration of six months. 
 
 The sentence was certainly valid as to the extent of the six 
 months' imprisonment. (People ex rel. Trainor v. Balcer. 89 N. Y. 
 460 ; People ex rel. O'Brien v. Wooclivorth, 78 Hun, 586 ; People 
 V. Sutton, 6 N. Y. Supp. 95; People ex rel. Tireed v. Ldscomh, 60 
 N. Y. 559, and cases cited.) 
 
 The learned counsel for the appellant insists that the whole 
 sentence was authorized by law, and the court below committed 
 error in its order. His argument is that the sentence is 
 warranted by section 34 of chapter 112 of the Laws of 1896, 
 which is familiarly known as the "Raines Law," and is an act 
 
244 1 )i:('isi(i.\.s KioIjAtim: to 
 
 iu rehitiou to the trulfic iu liqiKii-s and lor tiir' taxation and 
 regulation of tJic same. 'J'iiat s('(;tion is as follows: 
 
 '■J\iiiil/i<:s fur lioJiiiioiiK af this fill. — Any coi-jioi-iition, 
 associatiiiu, copartneisliip or person tratJBcking in liijuors, who 
 shall negh'ct or refuse t..> make a]iplicatiim for a li(iiior lax certifi- 
 ea(e, or give tlie bond or pay tlie tax iiiijiosed as riMjnired by this 
 net, shall be guilty of a inisileiiieaiior, aud, upon conviction 
 thei'eof, shall be punished by a fine of not less than two hundred 
 nor more than two thousand dollars, ]>rovided such fine shall e(puil 
 at least twice the amount of the tax for one year imposed Ijy this 
 act upon tli;' kind of traffic in liquors carried on, Avhere carried on, 
 and may also be iia]irisonod in a county jail or penitentiary for 
 the term of not inort' tlian one y(>ar." 
 
 This set(i(,n should be supplemented by sections 484 and 71S 
 of the Code of Criminal Procedure, which direct iu effect that a 
 juiignieiit Ihat the defeuduut ]i;iy a fine may also direct that he be 
 imjirisoned until the fine lie satisfied, specifying the extent of thb 
 imprisonment, which can not exceed one day lor every one dollar 
 of the fine. 
 
 The learned court below in ils opinion, which api)ears in tht 
 record, states as a reas<ai for the order that the fine can only be 
 collected and enforced under section :!(i of the "Raines Law," and 
 can not be enforced by imiirisonment. 
 
 That section jirovides that: 
 
 "Upon the conviction and sentence * * * of any person or 
 persons * * * tor a violation of the ]irovisions of this act, 
 the pen.ilty for which is prescribed in sections * * * 34 
 liercof, the court or ollicer imposing the sentence, or the clerk of 
 the court, if there be a clerk, shall forthwith make and file in the 
 office of the clerk of the county in which such conviction shall 
 have been had a certified statement of such conviction and 
 sentence. And the clerk of said county shall immediately there- 
 upon enter in the docket book kept by said clerk for the docketing 
 of judgments in said ollice the ann.unt of the penalty or fine and 
 costs imiiosed as a judgment against the person * * * so 
 convicted and sentenced and in fa\-or of the State Commissioner 
 of Ex.ise; and said county clerk shall also enter in the docket of 
 Haid judgment a, brief statement setting forth the fact that said 
 judgment is for a fine or penalty imposed for violation of the 
 'Liquor Tax Law,' and said county clerk shall immediately mail 
 or deliver to said conuly tivasurer or special deputy commis- 
 
Liquor Tax Law 245 
 
 sioner iur said county a duly certified transcript of said 
 judgment." 
 
 Tlie (section further provides tliat if the fine and costs imposed 
 shall be paid into court, the clerk shall pay the same to the 
 county treasurer or special commissioner; that if the judgment 
 shall not be paid within five days after such conviction and 
 sentence, the clerk shall issue an execution against the property 
 of the judgment debtor, directed to the sheriff of the county, 
 who shall collect the said judgment out of any property of the 
 judgment debtor, and the levy shall take precedence of any lien, 
 mortgages or conveyances docketed against the property subse- 
 quent to the judgment, and no property of the judgment debtor 
 shall be exempt from levy and sale on such execution, and 
 that the money collected shall be paid to the county treasurer 
 or a special deputy commissioner. 
 
 It does not appear that this judgment was entered or any 
 proceedings taken under the section just quoted. There being 
 no judgment entered, no oijportunity was afforded the relator to 
 pay any judgment and costs that should be entered under this 
 section. 
 
 Observe that the statute from which we are quoting nowhere 
 provides that the party convicted shall be imprisoned until the 
 fine is paid, and the only method of collecting the fine pointed 
 out by this statute is that indicated by section 36. Under that 
 section no property of the judgment debtor can escape execution. 
 So that all the tangible property or means which the debtor 
 would have to pay the fine, if imprisoned until the fine was paid, 
 could be reached by execution. 
 
 The peculiar provisions of the section would seem to indicate 
 that the only method for collecting the fine or penalty is that 
 provided for by that section. And the statute having provided 
 a means of collecting the fine or penalty, the sections of the 
 Criminal Code referred to do not apply. The provisions of 
 this statute are highly penal; the violator of it is liable to 
 imprisonment for the period of one year in addition to the 
 penalties. In the absence of any provision in that statute to 
 enforce the collection of the penalty by means of imprisonment, 
 we are not to assume that the legislature intended that two 
 remedies for the enforcement of the penalties and the collection 
 of the fines should be concurrent, viz., those of imprisonment, 
 and judgment and execution. 
 
24(i Decisions Ruinating to 
 
 The counsel lur the shei-iff uuikes the further poiut that the 
 judgment of the County Court was iiierel\ erroueous and could 
 not be corrected by habeas corpus proceedings. 
 
 The difficulty with this contention is that a pcntion of the 
 judgment or sentence was void aud beyond the authority of the 
 court to impose. The imprisonment for the penalty or fine 
 directed by the judgment is in excess of that which, by the law, 
 the court had the power to make, and is void for such excess, 
 and can be so declared in a habeas corjnis proceeding to relieve 
 the convicted party from imprisonment under such void pro- 
 vision. {Fvoplr c.r irl. Tweed v. LiKcomh, supra; People ex rel. 
 Traiiivr v. Balder, and Peejple ex rel. O'Brien v. Wuodworth, 
 supra; Ex parte Lamje, IS \Vall. 103.) 
 
 The majority of the court, however, have reached the 
 conclusion to reveise the order ;ippealed from and dismiss the 
 l)roro('(ling u]ioTi the ground that the proceedings are premature 
 as held in People ex rel. O'Brien v. ]]'oodicorth and People ex rel. 
 Traiiiur v. Baker {supra), aud People v. Sutton (6 X. Y. Supp. 
 llo). It is true that, at the time the order appealed from was 
 granted, that pari of the sentence which imposed an imprisoa- 
 ment of six months had not expired ; l)ut the imprisonment for 
 the i^enalty was a part of the sentence imposed, and the writ oP 
 habeas corpus was taken for the purjiose of determining the 
 validity of that portion of the sentence. The sherifl: in his return 
 to the writ justified tli(> detention of I he relator under the entire 
 seiiii'iice. The point does not seem lo have been raised in the 
 court below that the proceedings were premature, and the opinion 
 of the judge at S])e(ial Term discusses only the quest i<ni that I 
 liave considered in this opinion. 
 
 In the history of the case stated in the appellant's points it is 
 stated that the application was opposed upon the gi-otinds that 
 the relator was held in custody " by the sheriff u]Kin a final 
 judgment of Niagara County Court sentencing said relator to 
 imprisonment in Niagarji county jail for the term of six months, 
 and to pay a fine of fl,!).")!), and bi' imi>risoued until such fine 
 was satisfied, not to exceed ten hundred and fifty davs." The 
 statement then refers to the order made, but the objection upon 
 which my brethren disposed of this case was not raised, and in 
 view of the importance of the qtiestion involved T felt it my 
 duty to consider that question. 
 This appeal was hoard after the six months' term of imprison- 
 
LitjroR Tax Law 247' 
 
 ment had expired and the relator had been discharged upon tho 
 order of the Special Terin. I think, in the absence of the 
 objection that the proceediiii; was premature, the Special Term 
 had power to pass upon the only question presented. 
 
 While some of the cases cited seem to hold that the proceeding 
 was premature, they cannot be regarded as holding that, where 
 the question was not raised, the court had not jurisdiction to 
 pass upon the whole sentence and determine in advance what 
 portion of the sentence, if any, was illegal. Indeed, an excellent 
 reason may be found for determining that question in advance, 
 because, after the legal portion of the sentence has expired, 
 the prisoner may be subjected to illegal imprisonment during 
 the time necessary to have his case disposed of upon habeas 
 corpus. 
 
 These considerations lead to the conclusion that the ordet" 
 appealed from should be affirmed. 
 
 Order reversed and proceedings dismissed. 
 
 Fourth Appellate Department, December, 1897. Reported. 24 App. DIv. 632. 
 
 In the Matter of the Application of (Ieorge R. Nobles, for the 
 Revocation and Cancellation of the Liquor Tax Certificate of 
 James H. Youngs. 
 
 Dolson & Dolson, for appellant. 
 
 License was granted to one Duke, March 6, 1896, and was in 
 force and uncancelled on March 2:5, 1896, though the building 
 was not actually used for the sale of liquors, negotiations being 
 had for its remodeling for such use, which was subsequently 
 done ; liquor tax certificates were issued continuously to April 30, 
 1898. 
 
 The order revoking and cancelling defendant's liquor tax 
 certificate, upon the ground that tlie traffic in liquor was not 
 actually and lawfully carried on upon said premises on March 
 23, 1896, and that defendant had made false statements in his 
 application, Avas untenable, and there Avas no evidence showing 
 falsity of such statements. 
 
'24S Decisions Kelating to 
 
 Tlie certificate was a license for the building, {Pcojjlo v. 
 HiuiiiUoii, 47 N. Y. Wupp. lSl.j and the words " a(-tually lawfully 
 carried on" should be gi\cii such cousi ruction as would carry 
 out the intent of the legiskUure. {I'copU: c.j; rcL Wood v. 
 Lacomhn, UD N. Y. 41]; also 95 N. Y. Ou.S; 10 N. Y. ;j(j!) ; lil X. Y. 
 461; 13 X. Y. 7S; -I'l Wend. ;j!)7; li Hill, 019.) 
 
 This proceeding could be brought t>uly bj the owner of a 
 building within two hundred feet, as such a provision is mac?e 
 for the protection of such owners. 
 
 Clarence A. Farnuin, for respondent. 
 
 No traffic was carried on (ni .March L'lJ, ISiJG, for the premises 
 were vacant. Duke had a license which expired May 1, 1896, 
 but such license could not avail the appellant, for his own 
 certificate was not granted until August ol, 1890. {People a- 
 ni. Vuiiits V. Mnrraij, 14S X. Y'. 175; jlattcr of Zinzow, IS Misc. 
 653; Matter of Ritchie, IS yiisc ;J41 ; l\optc <\r ni. iSiccchcd v. 
 Laiitincrts, IS Misc. iJi:!, alfd. 14 App. Div. Gi:S.) 
 
 Order affirmed^ with costs. 
 
 All concurred, except ^'\'ARD, J., not voting. 
 
 Supreme Court, New York Special Term, December, 1897. Unreported. 
 
 ^Matter of the Application of Hexky H. Lyjian, as Commissioner, 
 to Revoke the Liquor Tax Certificate of True Friends Social 
 AND Literary Club. 
 
 Stover, J. This is an application for the cancellation of a 
 liquor tax certificate by leason of the violation of the law by 
 the sale of liquors within prohibited hours. This is one of a 
 number of clubs, so-called, \\lLere liquor is sold to any person 
 applying for membership in the club, which is accomplished by 
 the purchase of a ticket, or the procurement of a ticket entitling 
 the holder to admission to the club-room. There is no doubt 
 that liquor was sold within the prohibited hours, viz., between 
 the hours of one and five o'clock a. m., and on Sunday. Section 
 
Liquor Tax Law 249 
 
 31 of the Liquor Tax Law provides: " It shall not be lawful for 
 any corporation, assoeiatiou, copartnership or person, whether 
 having paid such tax or not, to sell, offer or expose for sale, or 
 give away, any liquor: (a) ou Sunday, or before hve o'clock in 
 the morning on Monday; or (b) on any other day between one 
 o'clock and five o'clock in the morning * * *." By a subse- 
 quent provision of the act it is provided " That a corporation 
 or association organized in good faith, under chapter 559 of 
 the Laws of 1895, or under any law which, prior to May 6, 1895, 
 provided for the organization of societies or clubs for social, 
 recreative or similar purposes, and v, hich corporation or associa- 
 tion was actually lawfully organized, and, if a corporation, its 
 certificate of incorporation diily filed prior to March 23, 1896, 
 and which at such date tratticked in or distributed liquors among 
 the members thereof, is excepted from the provisions of clauses 
 • a,' ' b,' ' c ' and ' d ' of this section * * *." It is claimed 
 by the respondent that the burden is upon the petitioner to 
 show that the respondent is not a club Avithiu the exception of 
 the statute. No evidence being olfered upon that subject, and 
 the testimony not disclosing the fact, it is claimed that the 
 petitioner has failed to make a case calling for the cancellation 
 of the certificate. The object of the corporation, as set forth 
 in the articles of incorporation, are stated to be '' The improve- 
 ment of its members in the arts of oratory, composition and 
 debate; the fostering of a knowledge of and appreciation for 
 English literature, and the promotion of social and fi-iendly 
 intercourse among its members." The presumption is that the 
 society is engaged in carrying out the purposes of its incorpora- 
 tion, and, in doing so, performing such acts as are directly 
 involved in or incident to such purposes; but it cannot be said 
 that the sale of liquor is either a portion of or necessarily 
 incident to the business of carrying out the purposes of the 
 incorporation. The presumption would, therefore, be, rather, 
 that the society was not engaged in the sale of liquor than that 
 it was. And if the rule of law was such as is contended for 
 by the respondent, slight evidence only would be necessary to 
 sustain a finding that the association was not engaged in the 
 traffic of liquor prior to March 2.3, 1896; the facts being almost 
 exclusively within the knowledge of the members of the cor- 
 poration themselves, and the proof of the facts accessible to the 
 corporation, and not to tlie petitioner. It may be readily seen 
 
Decisions Relatunmj to 
 
 that the priuciple involved is identical with that formerly arising 
 under prosecutions lor selling without a license, and the rule 
 may be said to ha\e been dehnitel\ settled that upon prosecutions 
 lor selling liquor without a license, the holder of the license is 
 bound to show his license as a matter of defense, the sale having 
 been proven. I'eople l: Quandt, :.' Parker's Grim. Kep. 410; 
 Smith r. Joyce, 12 liarb. iil ; I'eople r. Mcintosh, 5 X. V. Crim. 
 Kep. ;;S; Jefferson r. I'eople, 101 N. Y. 19; I'eople /■. liriggs, 114 
 id. 50. These cases cited are criminal cases, where the rule of 
 evidence would apply perhaps more strictly than in civil cases, 
 and i take it these applications are K'>\^'i'iied by the rules per 
 taining to civil cases, rather than criminal. So, in Eowell c. 
 Janvriii, l.ll X. Y. (JO, the rule is stated to be: "That when a 
 party counts ujxin the enacting clause of a statute containing 
 an exception, as the foundation of his action, he cannot logically 
 state his case unless he negative the exception. But if the 
 modifying words are no part of the enacting clause, but are to 
 be found in some other part of the statute, it is otherwise, and he 
 may then state his case in the words of the enacting clause, and 
 it will be prima facie suflBcient." And again, " When a statutory 
 enactment is modified by engrafting upon it a new provision, by 
 way of amendment, ]iroviding conditionally for a new case, such 
 modification is in the nature of a proviso." The distinction 
 being made, "An exception takes out of the statute somethiug 
 that otherwise would be part of the subject-matler of it; a 
 proviso avoids them by way of defeasance or excuse." The case 
 of Ix'owell r. Jamrin arose upon a * * * in an action to 
 enforce a stockholder's liability, and it was held that it was not 
 essential to the statement of the cause of action to negative the 
 exception, and the reason of the rule, as stated by the text- 
 writers, is, that the fact as to the transaction is peculiarly within 
 the knowledge of tlie party for whose benefit it is invoked. And, 
 therefore, it is said in suth cases, but slight evidence is sufficient 
 to sustain the burden of proof, and as has been seen in peculiar 
 cases arising under the statute, the burden is put upon the partv 
 seeking to avail himself of the privilege or exception of proving 
 himself entitled thereto. And when we consider the language 
 of the section under consideration, it se(>ms to me to bij quite 
 clear that the Legislature intended this construction should be put 
 u])on it; for, by the first ])vovision of the law, all persons, associa- 
 tions, corporations, etc., are included within the prohibition. 
 
Liquor Tax Law 251 
 
 and by a subsequent enactment, tbe exception is made as to 
 associations formed and conducting business in a speciiied 
 manner. Coupled with this, the fact that the party, against 
 whom the law is invoked, always has it within his power to 
 prove the situation, and that the petitioner is almost powerless 
 to obtain the evidence thereof, it seems to me that it would be 
 unreasonable to hold that a petitioner, under a law of this 
 character, was bound to negative, in the tirst instance, tne 
 exception provided by the statute. And again, upon an 
 application, no discretion is vested in the officer granting the 
 certificate. He has no power to investigate, but it is his duty 
 to issue the license upon the payment of the fee, proper 
 application being made. So it may be seen that when the part\' 
 who is selling liquor is called upon to answer therefor he must 
 stand prepared to show that he is exercising his right under a 
 due authority and a proper license. It is no hardship for the 
 respondent to show the fact in that regard, and the rules of 
 evidence ought not to be so interpreted as to defeat the law, 
 where no injury is done to any party, and a reasonable interpre- 
 tation would fully accomplish the purposes of the statute. If I 
 am correct in the views above stated, the petitioner has sus- 
 tained the allegations of his petition, and the tax certificate must 
 be delivered up to be canceled. 
 
 Supreme Court, New York Special Term, December 29, 1897. Unreported. 
 
 In tlie Matter of the Tetition of Henry H. Lyman, to Revoke 
 a Liquor Tax Certificate of The Shenandoah Social (^lib. 
 
 Stover, J. This application comes within the rule as laid 
 down in the case of the True Friends Social Club, with the 
 additional finding that it is a disorderly, place, and that the 
 premises occupied by the club are the habitual resort of 
 prostitutes for the purpose of carryin.n on their illegal business. 
 
Decisions Kblatixi; to 
 
 Supreme Court, New York, Special Term. Reported. N. Y. L. J. December 
 
 13, 1897. 
 
 lu the Matter of the Petition of Hexky H. Ly.max to Itevuk- the 
 Liquor Tax Ccrtiiicate of Thk Young Men's Cos.moim^i.itan 
 Club. 
 
 SroVEU, ■}.: This is an application to cancel a liquor tax 
 certititate, and upon the evidence I think it must rest upon the 
 fact, which it is churned is shown, that the club as now conducted 
 is not in ■^nod faith carrying;- out the purposes of its incorporation. 
 The evidence shows that it is within the exception of the statute, 
 that it was organized in j^ond faith, and engaged in the traffic in 
 liquor among ils members on March 1^:1, I^IK;. The club is con- 
 ducted in an oi-derly manner, and as stated above, the only 
 ground which can l>e urged witli any plausibility is the one stated. 
 The statute, I think, does not i;t>rmit the court to go beyond the 
 fact of the organization of Ihe club as ])rovided by the statute. A 
 club legally organized, and which was engaged on the 2:')rd day 
 of ]\farch, ISiK;, in Irattickiug or distributing liquors among its 
 members, is entitled to continue, within the ])r(>^•isions of the law 
 and is within the exception from clauses " a " and " b " of section 
 31. And when such a corjioration continues to carry on the sale of 
 liquor among its members, it is not within the power of the court, 
 under Ihe statute, to i)ass upon the good faith of the coriioration 
 in the exercise of the jiowers granted to it. This view, it seems 
 to me. is str<'ugthened l)y the fact that the Legislature has 
 (lesignnted the cbiss of corporations to which the law should apply, 
 viz.: those i>rg:)nizeil under any law which, prior to May <>. ISIt.'), 
 was actually oi-g:niized, and at such date trafficked in or dis- 
 tribiiled liquors among its members. If it had been intended to 
 leave the question as to whether the corporation was in good 
 faith cari-ying out the purposes of its incorporation to be passed 
 upon by the court, no. good reason can be assigned why a c'crtain 
 class of corporations, or coi porations organized at one time more 
 th:in another should be selected for the inquisition of the court. 
 Under tlie former excise law, some discretion was vested in the 
 granting of licenses in the ext'ise board, and licenses might be 
 i-eliised to clubs, organizations or individuals, within certain 
 discretionary lines, but it was the object of the Liquor Tax Law 
 
Liquor Tax Law 
 
 to do away with, this discretion, and to place all iiersuus ajiplying 
 for a liquor tax lertiticate upon an equal plane, so that there 
 should be no discrimination, but upon compliance with the laM, 
 all should lie equally entitled to consideration. But it was dis- 
 covered that there was a disptisition to organize clubs for the 
 sole purpose of trafticking in liquor under the Liquor Tax Law, 
 and while they were ostensibly organized for other purjioses, tiio 
 actual and real object of the organization was the traffic of liquor. 
 To remedy this, the Legislature said that all clubs which had been 
 organized after the passage of the Liquor Tax Law should be 
 within the itrohibition of the law. And it was this class of clubs, 
 and to remedy this evil, that the Legislature jirovided for the 
 investigation by the court. And Avhile it may be said that a club 
 that "was organized prior to March 2:^, ISOG, should no more be 
 allowed to use its incorporation for purposes of evasion than one 
 organized afterwards," yet that is a matter which appeals to the 
 legislative discretion and not to the judicial. In order to come 
 within the prohibition of the statute, the court must be able to 
 find that the corporation was not organized in good faith, &c. 
 The Legislature has limited the investigation to the (piestion of 
 the organization of such clubs as have been organized before the 
 date fixed. It is not necessary here to determine whether the 
 Legislature has power to authorize the court, upon a summary 
 application, to deprive an association legally organized, of the 
 right to sell liquor, for it seems to me that the Legislature has not 
 given that power. Nor is it profitable to discuss here whether an 
 action should be maintained by the Attorney General to forfeit 
 the charter, because such an action is not before us. It may be 
 within the power of the Legislature to permit an investigation as 
 to whether a liquor tax certificate is being used in good faith or 
 otherwise, without intruding upon the constitutional rights oi 
 the holder thereof; but until the Legislature has given the court 
 the power to act in that particular, it ought not to undertake to 
 exercise it. We are dealing with a purely statutory provision, 
 and are not called upon to exercise any power beyond that 
 conferred by the statute. 
 
2r)4 Decisions Relating to 
 
 Supreme Court, Dutchess Special Term, December, 1897. Unreported. 
 
 1'eople v. Conrad Stock. 
 
 Baunakd, J. iS. < '. : The flue imposed h\ section .'M of the Raiiies 
 Act, so railed, is a compulsoi y one and must be for a certain 
 amount. It is not like a flue imposed for a misdemeanor with or 
 without imprisonment. By section 36 of the same act, it is 
 provided that an execution shall issue if the judgment is not p»ai'l 
 which is entered for the penalty imposed by the court for a verdict 
 or the Raines Law under section 34. This execution takes 
 jtrecedence over all jirior liens. It is, therefore, manifest that the 
 Leiiislature inteiuled to rely upon the execution for the collection 
 of the fine under the Liquor Tax Law. It is in no sense a criminal 
 j)unishm('nt. You may punish criminally by imprisonment in 
 addition, l)ut you arc not l)c)und 1o do so. The liquor fine goes to 
 one place and the general criminal line goes elsewhere. The 
 defendant is entitled to be discharged from imprisonment. The 
 sentence of the defendant to i)ay a fine of thi-ee hundred dollars 
 is legal, and as such, must be entered and enforced against the 
 defendant's projicrty according to the provisions of section 30 of 
 the Liquor Tax Law. 
 
 Supreme Court, New York Special Term. Reported. N. Y. L. J. 
 
 January 20, 1898. 
 
 In the matter of tlie petition of Henry H. Lyjian to revoke the 
 liquor tax certifi<a(e of GRAMEmr ri.uB. 
 
 Russell, J. : It has now been decided by the Appellate Division 
 of the Supreme T'ourt in this department that the applicant for a 
 liquor tax certificate under cliapter 312 Laws of 1897. while 
 receiving a quasi jiroperty interest by the payment for the 
 certificate and its issuance to him, receives it under the in-ovisions 
 of the law and subject (o all of the causes provided for its 
 cancellalion under the methods of procedure pointed out by the 
 act. (In re Liriiif/stdn v. Shadi/, App. Div. 1st Dep. MSS.) A 
 careful ])erusal of llic evidence in this case clearly indicates that 
 the Graiiiercy Club was not organized and is not carried on for 
 
LiQuoE Tax Law 255 
 
 the urdiuary club purposes aud that the premises are carried on 
 and conducted in a disorderly way so as to yiolate the safeguards 
 proyided by the statute as to the character of the places entitled 
 to yend spirituous liquors. Those safej^uards are the only 
 substitutes for the proyisions of the former law by which com- 
 missioners had some discretion in issuing licenses. It follows 
 that the prayer of the petition must be granted and the certificate 
 surrendered, with costs. Counsel for petitioner will present an 
 affidayit of the disbursements so that the amount of costs can be 
 satisfactorilv determined. 
 
 Supreme Court, New York Special Term. Reported. N. Y. L. J. January 
 
 20, 1898. 
 
 In the Matter of the Application of Henry H. Lyman, to Eeyoke 
 the Liquor Tax Certificate of the Plymouth Social Club. 
 
 Russell, J. For the same reasons which apply to the case 
 against the Gramercy Club an order is granted revoking the 
 liquor tax certificate in question, with costs. It is unnecessary 
 to consider the further question as to whether the club has a 
 legal existence. The objections by the respondent to the testi- 
 mony offered are severally overruled and exceptions givo:i. 
 Counsel Avill furnish me with an aflidavit of the disbursements. 
 
 Supreme Court, New York Special Term, January, 1898. Reported. 
 
 60 N. Y. Supp. 76. 
 
 In the Matter of the Application of Henry H. Lyman to Revoke 
 a Liquor Tax Certificate of Henry Korndorper. 
 
 Beekman, J. This is a motion for a stay of proceedings 
 pending an appeal taken by the respondent from an order here- 
 tofore made and entered herein revoking a liquor tax certificate. 
 The motion is brought on an order to show cause with an ad 
 interim stay, and the preliminary objection is made by the 
 
-ri<> J )|';(,'1,S1()XK KlOI.ATIlNQ TO 
 
 uttoi-uey loi' the ijetitioni'i- that llic aClidavit ou which such ordei' 
 was made tails to slate any r(Msoii Jor a shorter notice than 
 eiyht days, as ri'(juircd \>y Kule oT ol' tlie (ieneral liules l^[ 
 I'ractice and by section 7S() ot tlie ('ode of Ci\il Prcjccdure. It 
 is also further objected tliat tlie order makes no provision for 
 the service of the same on the petitioner. I think the first 
 objection is well taken. Tlie notice provided for in the order 
 is less than eight days, and no reason is disclosed liy the affidavit 
 for thus shortening the time. The order was. therefore, made 
 in \iolation of section 7S() of the t'ode of Civil I'rocedure and 
 rule ;I7 of the (ieneral Rules of I'ractice. The objection is a 
 snl)stantial one, and when raised cannot be disregarded by the 
 court {Proctor v. f^iiiiJi( r, 82 Huu, l!r)3.) The second objection 
 is also well taken. The motion must, therefore, be dismissed, 
 with |10 costs. Notice c^-der for settlement. 
 
 Supreme Court, Monroe Special Term. January, 1898. Reported. 
 
 22 IVlisc. 301. 
 
 In the flatter of the I>etition of At.i ked R. Rradley for an Order 
 Revcddng Liquor Tax Certificate Xo. Kl,.'!?. 
 
 Liquor Tax Law — Assignee of a certificate conniving at illegal acts of 
 occupant of a saloon — Cancellation. 
 Where it appears, In proceedings taken to revoke a certificate issued 
 under the Liquor Tax Law (Laws of 1896, chap. 112). that, almost 
 immediately after the certificate was issued, its owners assigned it to 
 another although continuing to conduct the business themselves, and that 
 they thereafter persistently violated that provision of the law which 
 forbids the existence, in a room where liquors are sold, of any inclosed 
 box or stall which prevents a full view of the entire room, and that they 
 also unlawfully employed, to sell and serve liquors, a person who, to 
 their knowledge, had been convicted of a felony, the certificate must be 
 canceled, notwithstanding the property rights therein ot the assignee, as 
 he must, by his conduct, be deemed to have assented to the unlawful acts 
 of his assignors. 
 
 Petitiox for order revoking lir|nor tax certificate. 
 
 (jharles E. Rostwick, for petitioner. 
 
 Lonis II. Jack, for respondents. 
 
LiQuoE Tax Law 257 
 
 UuNWELL^ J. : Proceeding for an order to revoke and cancel a 
 liquor tax eei-tiflcate under subdivision '2,, section 28, of the Liquor 
 Tax Law. 
 
 The certificate in question, No. 13,517, was issued May 1, 1897, 
 to William E. Hall and Maurice J. Scollard, composing the 
 partnership of Hall & Scollard, authorizing the sale of liquors 
 under subdivision 1, section 11 of the Liquor Tax Law. 
 
 On the 4th day of August, 1897, the petitioner, Alfred B. 
 Bradley, entered complaint with the department of excise that 
 Hall & Scollard were violating the Liquor Tax Law. 
 
 This proceeding was brought into this court by said Alfred B. 
 Bradley upon a petition alleging that said Hall & Scollard had in 
 one of the rooms in which the traffic in liquors was carried on by 
 them under said certificate an inclosed box or stall, which 
 prevented a full view of the entire room in which they sold 
 liquors by persons therein, in violation of subdivision h of section 
 31 of the Liquor Tax Law of the State of New York, which reads 
 as follows : "And it shall be unlawful to have at any time in a 
 room where liquors are sold any inclosed box or stall, or any 
 obstruction which prevents a full view of the entire room by every 
 person present therein." Also that said Hall & Scollard unlaw- 
 fully permitted one John McKeough, who had been convicted of a 
 felony, to sell and serve liquors upon said premises contrary lo 
 subdivision f, of section 31 of the Liquor Tax Law, which reads 
 as follows: "And it shall be unlawful to knowingly permit aijy 
 person who has been convicted of a felony to sell or serve an^ 
 liquor upon the premises." 
 
 A referee A\as appointed upon the presentation of the petition 
 to take the evidence relating to these charges. The petitioner 
 appeared before the referee by his attorney, Charles E. Bostwicts, 
 Esq., and Hall & Scollard, and Stephen Rauber, assignee of said 
 liquor tax certificate, by their attorney, Louis H. Jack, Esq. 
 
 It was conceded upon the hearing that Hall & Scollard sold 
 liquors under said certificate at their place of business. No. 22 
 Front street, city of Rochester, N. Y., from the date it was issued, 
 May 1, 1897, to August 18, 1897. The alleged violation took 
 place between these dates. 
 
 The evidence upon the hearing before the referee clearly 
 established that Hall & Scollard did maintain at all times during 
 the period they sold liquors under said certificate at their place 
 of business, in a room where liquors were sold, an inclosed stall 
 
25S Decisions Jti<;i.ATiNG to 
 
 and obstruction foi-nuMl by curtains suspended from wires over- 
 hea.l which prevented a full view ..t the entire room by persons 
 present therein, in violation of subdivision h of section 31 of the 
 Liquor Tax Law. 
 
 The evidence also establishes that said Hall & Scollard unlaw 
 fully permitted said John ]McKeough, a person who had been 
 convicted of a felony, as was well known to said Hall & Scollard, 
 to sell and serve liquor upon said premises during, the occupancy 
 thereof by said Hall & Scollard, and while they were engaged in 
 the business of selling liquors upon said premises under said 
 certificale, in violation of the provisions of subdivision f of section 
 31 of said Liquor Tax Law. 
 
 As to Hall & Scollard, it is not seriously contended but that 
 the ccrtiflcate is revocable as to them upon the alleged violation 
 beinj;' established. 
 
 But, Rauber, who took an assiiinment of the certificate from 
 Hall & Scollard almost immediately after it was issued to them, 
 alle.ues that by his assijiument, which is permitted by law, he 
 acquired pro])erty rights in the certificate of which he can not be 
 deprived by the wrongful acts of Hall & Scollard. 
 
 Section 27, which authorizes the assignment, provides that the 
 assignee, upon piiqier application, security, etc., and upon 
 obtaining a i)ro]ier indorsement thereon, by the olBcer who issued 
 the certificate, may carry on the business at the same place. By 
 section 25, the holder of such a certificate may surrender the 
 same upon ceasing to traffic in liquors and obtain a rebate thereon 
 for the unexpired term. 
 
 Thus it is seen that, by a pro]ier assignment rights may be 
 acquired having a definite pecuniary value. The purchaser may 
 employ the certificate to carry on the liquor business or may 
 convert it into money by a surrender of the certificate and 
 acceptance of the rebate. 
 
 But it must not be lost sight of that the liquor tax certificate 
 is, after all, in the nature of a license granted by a law enacted 
 under the police power of the Legislature. People ex rel. 
 EinslVld V. Jlurray, 141) N. Y. 367. 
 
 A jirominent feature of the law is its restriction upon the 
 traffic. In this case the assignee permitted Hall & Scollard to 
 hold the certiflcaie and carry on their business thereunder after 
 the assignment to him and until the violation aforesaid was 
 committed, without in any manner making it known that a change 
 
Liquor Tax Law 259 
 
 in the ownership thereof had taken place and without taking any 
 of the steps, subsequent to assignment, necessary to reduce the 
 certificate to his personal control or to realize the property value 
 therein. In all probability he intended that Hall & Scollard 
 should hold the certificate so long as they remained customers of 
 his company, during the term for which it was granted, unless 
 for some cause they should go out of business. 
 
 By taking this course, the assignee of the certificate permitted 
 Hall & Scollard, to whom it was issued, to remain the possessors 
 and holders thereof, and carry on the liquor business by means 
 thereof. He thereby subjected the certificate to all risks that 
 might attach to it from a violation of the law by them. Other- 
 wise, the whole scheme of the statute providing for a revocation 
 of the certificate for violations could be evaded by a process, the 
 simplicity of which would lead to frequent, if not universal, 
 resort thereto. 
 
 Being satisfied that Hall & Scollard are guilty of the violation 
 of the Liquor Tax Law aforesaid, in permitting said McKeough 
 to sell liquors upon their said premises licensed by said liquor tax 
 certificate, after knowledge, on their part, that he had been 
 convicted of a felony ; and in maintaining said stalls and obstruc- 
 tions, preventing a full view of the entire room where liquors were 
 sold by persons present therein, and consequently that said Hall 
 & Scollard are not entitled to hold such certificate, the order 
 asked for in the petition is granted, revoking and canceling such 
 certificate, with a provision that the holder of said liquor tax 
 certificate and any person having such certificate in his possession 
 or control shall forthwith surrender said certificate to the officer 
 who issued the same or his successor in office. 
 
 Costs to the amount of |70 are allowed against the three 
 defendants. Hall, Scollard and Rauber. 
 
 C)rdered accordingly. 
 
260 Decisions Kblating to 
 
 Supreme Court, Genesee Special Term, January, 1898. Reported. 
 
 22 Misc. 380. 
 
 The People ex rcl. Morris C. Decker et al., Relators, v. Albert 
 A. Parmelee et al., Defendants. 
 
 Election Law — A recount of ballots, cast at a town meeting upon the 
 question of selling liquor, may be compelled — Insufficient alternative 
 writ of mandamus — Effect of petition and affidavits. 
 
 The court has power, under the Election Law (Laws of 1896, chap. 
 909, §§111, 113, 114), to require, by mandamus, a recount of ballots 
 rejected at an election, had at a town meeting, where there was a special 
 vote under the Liquor Tax Law (Laws of 1896, chap. 112, § 11, subds. 1, 
 16) to determine whether liquor should be sold in the town; but where an 
 alternative writ, issued ex parte, contains no allegations as to whether a 
 proper legal return was made, or whether if made, it contains a statement 
 that the ballots sought to be counted were declared void, or whether the 
 ballots in question were, in fact, declared void and were so indorsed, or 
 whether the inspectors failed to count any protested ballots, the writ Is 
 insufBcienr to justify the issue of a peremptory writ; nor can resort be 
 had to the petition or affidavits in order to sustain it. 
 
 Demurrer to alternative writ of mandamus. 
 
 Bowen & Washburn, for relators. 
 
 Kandall & Huyck, for defendants. 
 
 Laughlin, J. The alternative writ, issued ex parte, recites 
 that the defendants, other than the county treasurer, constituted 
 the town board of the town of Ijeroy, Genesee county, and as 
 such, the inspectors of election at the town meeting held on the 
 2d day of March, 181)7, at which time a separate vote was taken, 
 under subdivision 1 of section 11 of the Liquor Tax Law, on the 
 question as to whether liquor should be sold in that town; and 
 that on the canvass of the votes "they rejected lOi! ballots and 
 the votes thereon which should have been canvassed and counted 
 by them, for alleged technical errors and defects." It is further 
 alleged in the writ that the proposition for selling liquor was 
 declared lost, whereas if the rejected ballots had been counted 
 a majority would have been shown for such ])roposition. Tiie 
 demurrer is ujiou the ground that the writ fails to state facts 
 sufficient to authorize the court to grant the relief awarded, 
 to-wit: a recanvass of the rejected ballots, that they be all counted 
 
Liquor Tax I^w 261 
 
 for ov ayaiust the proposition aud that the present recorded 
 result ut the election be amended or superseded by a new return 
 showing the true result. The writ directs the town clerk to 
 deliver a sealed package containing the rejected ballots to the 
 inspectors, and, while there is no specific allegation of the fact, 
 it is 10 be inferred thai these ballots have been preserved in the 
 manner provided by section llo of the Election Law for preserv- 
 ing void and marked ballots. The case was argued upon the 
 theory that the ballots were thus preserved. 
 
 ^eetiou 16 of the Liquor Tax Law provides for the submission 
 to the electors of the proposition as to whether liquor shall be 
 sold, upon a ballot in the form of the ballot required for voting 
 on constitutional amendments, and with respect to the canvass 
 and return of the votes, provides as follows : 
 
 "At such town meeting the several questions may be voted 
 upon by the electors who may legally vote thereat. A return of 
 the votes so east and counted shall be made as provided by law, 
 and if the majority of the votes shall be in the negative on either 
 of such questions, no corporation, association, copartnership or 
 person shall thereafter so traffic in liquors or apply foi- or receive 
 a liquor tax certificate under the subdivision or subdivisions of 
 such section 11 upon which the majority of votes have been cast 
 in the negative. * * * A copy of the statement of the result 
 of the vote, upon each of such questions submitted, shall, 
 immediately after such submission thereof, be filed by the town 
 clerk or other oflQcer with whom returns of town elections are 
 required to be filed by the Election Law, with the county 
 treasurer of the county * * * and no liquor tax certificate 
 shall thereafter be issued by such officers to any corporation, 
 association, coiiartnership or person under such subdivision of 
 section 11 of this act upon which a majority of the votes may 
 have been cast in the negative." 
 
 T'jion gTonnds of public policy the courts have, with one excep- 
 tion I believe (the case of People ex rel. Sanderson v. Payne, 12 
 Abb. N. C. 103), uniformly held that after the ballots have been 
 canvassed and desti-oved under the laws which formerly provided 
 for disposing of them in that manner, that a writ of mandamus 
 should not issue to compel the election oflicers to reconvene and 
 make a new return changing the result, on the ground of fraud 
 or mistake in making the original canvass or return. In view 
 of the verv material changes contained in section 11 of the 
 
261' Decisions Relating to 
 
 Election Law, by whicli the ballots are now preserved in the 
 condition in which they are voted and, under section 113, may 
 be inspected by an order of the court, it may well be that tlie 
 rule hereinbefore referred to should not be now ajjplied to such 
 ballots. 
 
 Section 114 of the Election Law now expressly provides that a 
 writ of mandamus may issue, upon the application of any candi- 
 date voted for at the election, requiring a recount of the votes 
 on the ballots rejected by the inspectors as void and not counted, 
 and also the ballots objected to as marked for identification 
 The iuspectdis arc required to indorse on all ballots which thej 
 reject and exclude from the count as void the sjiceiflc reasbi 
 for such rejection, and the return must specify the number ol 
 such ballots. § 111 of Election Law. The same section of the lav\ 
 requires the inspectors to indorse on all ballots protested as 
 marked for identification the words " Protested as marked foi 
 identification," specifying over their signatures the mark or 
 marking to which objection is made, and while they are required 
 to count sncli protested ballots, their return must contain ;\ 
 statement of the number. The inspectors are also required to 
 prcs('r\'e and return in a sealed i)ackage the void and proteste;! 
 ballots. If that has been done, such ballots are presumably now 
 in the same condition iis when the ballot-boxes containing them 
 were ojiened by the inspectors at the clos(> of the polls and 
 before the canvass. :\Iatter of Election of Veinber of Assembly 
 18 Misc. Rep. :i!)l, and cases cited. 
 
 The alternative writ demurred to does not require a reeanvass 
 of the votes counted, but only of the votes not eonntcd. Thf. 
 inspectors had no authority to reject the ballot and exclude it 
 from the count excepting where they determined that the ballot 
 was void, and after such determination indorsed upon it the 
 specific reason for the rejection. The writ charges that by the 
 action of the inspectors about one-tenth of the qualified voters ot 
 the town of Leroy were disfranchised by having their ballots 
 wrongfully excluded from the count. The legislature has not 
 deemed it against public policy to compel a recanvass of the 
 void and protested ballots containing the names of candidates 
 for office, but has expressly provided that this may be done 
 §114 of Election Law. The counsel for the inspectors contends 
 that inasmuch as no express provision has been made by the 
 legislature for a recount of the votes on constitutional amend 
 
Liquor Tax Law 263 
 
 ments and other propositions, that no authority exists, eithei 
 under the statute or at common law, therefor. 
 
 If tlu' provisions of the General Election Law relating to void 
 and protested ballots do not apply to constitutional amendments 
 and propositions submitted to the voters, then it would be the 
 duty of the insjiectors under the Liquor Tax Law hereinbefore 
 quoted to count all the ballots where they were able to determine 
 the intention of the voter, and the right to the writ of mandam.us, 
 would be clear. It has always been the law that without any 
 statutory authority the Supreme Court possesses inherent power, 
 by the Avrit of niaiukuinis. to compel all public officials to perform 
 their statutory duties. Under this power boards of canvassers 
 and election inspectors may be compelled to reconvene and 
 completely discharge, as required by law, any duty devolving upon 
 them which they have not fully discharged. People ex rel. 
 Emers(^n v. Board of Aldermen, 47 N. Y. St. Repr. 451 ; affirmed, 
 ()5 ITun, .300 ; see eases cited in both opinions. 
 
 Upon the same principle, if the inspectors have not filled out 
 and signed their return as required by law they will be compelled 
 to meet again and do so; or, if they have filed conflicting returns, 
 they will be compelled to file new and correct returns. People 
 ex rel. (jleason v. Blanc, 14 Misc. Rep. C20. 
 
 If the inspectors were governed by the Election Law in 
 canvassing and making a return of the ballots voted on this 
 proposition as to whether liquor should or should not be sold in 
 Leroy, then it was their duty to comply with all of its provisions, 
 including the statement in their return of the number of void and 
 protested ballots separately, properly indorsing such ballots and 
 sealing and returning the same. 
 
 The construction of the Election Law contended for by the 
 defendants would lead to the anomaly of having the void and 
 pjrotested ballots on constitutional amendments and other 
 propositions submitted thus indorsed, sealed and returned by the 
 inspectors and with authority on the jiart of the court to open 
 and inspect the same, but all to no purpose, as the court would 
 be entirely without authority to require the correction of any 
 error that might clearly appear to have been made. 
 
 The writ does not contain any allegation as to whether a proper 
 return was made as required by law, or whether the return 
 contains a statement that the ballots sought to be counted were 
 declared void, or whether the ballots were in fact declared void 
 
'2<3i Ducisioxs Relating to 
 
 by the inspeclors and so indorsed; or whether the inspectors failed 
 to count any protested ballots. In a matter of this importance, 
 while I am impressed with the propriety of compelling these 
 inspectors to jiropeily perform their statutory duties and of 
 reviewing their action, at least to the extent of determining 
 whether they have complied with the law, yet a peremptory writ 
 of mandamus should only issue on facts conceded or found, and I 
 think the allegation of the alternati\'e writ that these ballots 
 should have been counted is an allegation of a legal conclusion, 
 and that the writ fails to state the facts warranting the con- 
 clusion. If the court were to issue a peremi)tory writ on this 
 alternative writ, for aught that appears the inspectors might be 
 com]»clleil to eount \'oi(l ballots which were properly declared void, 
 indorsed as xoid, returned as \oid and accounted for in the 
 return as void. On a denuirrer to an alternative writ of mandamus 
 resdrt can nol be had to the petition or affidavits for the facts t^j 
 sustain it. The alternati\e writ is a pleading and must stand or 
 fall on the wulliciency of its own recitals of facts. Code Civ. Pro., 
 §i;07o; I'eople r. Columbia Club, 20 Civ. Tro. Rep. ;;23. 
 
 The demurrer must, therefore, be susiained. 
 
 For the purjjose of determining whether the relator should 
 have leave to amend, I have examined the petition and affidavits, 
 and think Ihey pi-esent a meritorious case. The demurrer is 
 sustained, but with leave to the relators, within twenty days, and 
 upon |)aynient of costs, to amend the writ by citing a plain and 
 concise slateiiient of the lacts set forth in the petition and 
 affidavits on which the writ was issued, or to apply to the court 
 for an insjtection of the void and protested ballots, and for leave 
 to serve an amended w rit settins; forth what is shown by such 
 ballots, and upon other affidavits as tliey may be advised. An 
 interlocutory judgment may be entered accordingly. 
 
 Judgment accordingly. 
 
LiQuoE Tax Law 265 
 
 Supreme Court, New York Criminal Term, January, 1898. 23 Misc. 504. 
 
 The People op the State of New York, Plaintiff, r. Bbckie 
 KcRMixsKY, Defendant. 
 
 Liquor Tax Law — An indictment found under it may, on the application 
 of the district attorney, be dismissed by the court, in furtherance 
 of justice — Practice as to a nolle prosequi considered — Code of 
 Criminal Procedure, §671. 
 
 The power and riglit of a district attorney to apply, under section 671 
 of the Code of Criminal Procedure, to the court for the dismissal of an 
 indictment, in furtherance of justice, is, in the case of an indictment found 
 under the Liquor Tax Law (Laws of 1896, chap. 112), neither affected nor 
 impaired by sections 37 (as amended by Laws of 1897, chap. 312) and 38 
 of that statute, maldng it the duty of a district attorney to prosecute any 
 person ^iolatiiig the statute and further declaring that "any offlcer who 
 shall neglect or refuse to perform his duty under its provisions shall be 
 liable to a penalty of ?500, and if a district attorney shall be removed 
 from ofhce." These sections do not, by implication, repeal section 671 of 
 the Code of Criminal Procedure. ' Former and present practice, relative 
 to the entry of a nolle prosequi, considered. 
 
 Application to dismiss an indictment. 
 
 Asa Bird (laidiner, district attorney, for People. 
 
 Mr. O'Haire, for defendant. 
 
 FuESJtAN, J. This is an application to dismiss an indictment. 
 The district attorney had indorsed upon the indictment the 
 following statement: "Were this case to be the subject-matter 
 of an official recommendation to the court, I should unhesitat- 
 ingly affirm the impossibility of a conviction upon the merits, 
 and request the court to make a final disposition thereof by th-e 
 dismissal of this indictment." In view, however, of the 
 provisions of sections 37 and 38 of the Liquor Tax Law (Laws 
 of 1896, chap. 112; amended 1897, chap. 312), he is in doubt 
 whether such recommendation can properly and legally be made 
 by him. He, therefore, submits that question to the court for 
 determination. 
 
 At common law the attorney-general alone had power to enter 
 a nolle prosequi. This he could do without application to the 
 court. Indeed, the court itself could not, of its own motion. 
 
26(5 Decisions Kelating to 
 
 direct the eutry of tliLs order. See People v. McLeod, 1 Hill, '.Ml, 
 at p. 405. In acUial pracUce, however, it became customary tor 
 district attorneys, who were regarded as in some sense represent- 
 ing the attorney-general, to exercise this pow er. This very ques- 
 tionable practice led to the adoption of a provision in the Revised 
 Statutes declaring it to be unlawful for any district attorney to 
 enter a nolle prosequi upon any indictment, " or in any other 
 way to abandon the same" without leave of the court. Edmonds' 
 edition N. Y. Statutes at Large, vol. 2, p. 752 § 54. Even under 
 this statute it was said that the court could not of its own 
 motion enter a nolle prosequi. Thomason c. De Mott. 18 How. 
 Pr. 521). There was always, however, inherent power in the 
 court to set aside an indictment in a proper case, whether of 
 its own motion, or on motion of the accused, or of the district 
 attorney. People v. Brickner, 15 N. Y. Supp. 52S; People r. 
 Resteublatt, 1 Abb. Pr. 2G8; People v. Briggs, 60 How. Pr. 17; 
 see page 42 and cases there cited. This was the history of the 
 law concerning the riuhts and power of the court and the district 
 attorney in relation to the disposition of indictments, otherwise 
 than by trial, down to the adoption of the Code of Criminal 
 Procedure. By section 671 of that act, authority is conferred 
 upon the district attorney to apply for the dismissal of an 
 indictment, and the court is empowered to act upon such appli- 
 cation and to order such dismissal, or it may do so on its own 
 motion. The precise question here Is, whether there is anything 
 in sections .'57 and ',iS of the Liquor Tax Law taking from the 
 district attorney the right lo make the application provided for 
 by section (171 of the Code of Criminal Procedure. The power 
 of the court to order such dismissal of its own motion cannot be 
 questioned. There is nothing in the Liquor Tax Law prohibiting 
 such action. Section '.il of that act makt's it the duty of the 
 district attorney to prosecute any person violating any of the 
 provisions of the act (Amendment of 1S07, §37), and section 38 
 (Act of 1896) declares that " any officer who shall neglect or 
 refuse to perform his duty under the provisions of this act shall 
 be liable to a penalty of five hundred dollars, * * * and if 
 such officer be * * * a district attorney, shall be removed 
 from office * * *." 
 
 Tlieie are many statutes which impose specific duties upon 
 district attorneys, and, although no special penalty is provided 
 for a neglect or refusal to perform them, it has always been a 
 
Liquor Tax Law 267 
 
 recognized rule that, where the law imposes a duty upon a public 
 officer and he neglects or refuses to perform it, he may be 
 indicted therefor (Bouvier's Law Diet., title " Negligence"), and 
 of course in certain cases removed from oftice. Among the 
 recognized duties of this officer is the prosecution of all offenders 
 who are presented by indictment, and it is clear that a wilful 
 neglect or refusal to discharge this duty in any proper case will 
 subject him to indictment and expose him to removal from 
 office; yet he has always had authority either to ask leave to 
 enter a noUe prosequi (before the Code), or, since the Code, to 
 apply for a dismissal of any indictment. The State Constitution 
 (art. 13), in relation to bribery declares (section 6) that "Any 
 district attorney who shall fail faithfully to prosecute a person 
 charged with the violation in his county of any provision of 
 this article which may come to his knowledge, shall be removed 
 from office by the Governor," but there can be no doubt, I think, 
 that if, after indictment, it is found that there is an entire 
 failure of proof, the district attorney may apply to the court 
 for a dismissal under section 071, without exposing himself to the 
 penalty thus prescribed for not " faithfully " prosecuting the 
 person indicted. Section 38 of the Liquor Tax Law is highly 
 penal and is, therefore, to be construed with great strictness. 
 There is no provision of the act expressly repealing section 6Y1 
 of the Code of Criminal Procedure, nor is there any conflict 
 between them such as to create a repeal thereof by implication. 
 The statute does not mean that the district attorney shall 
 prosecute a hopeless case. The law never requires the perform- 
 ance of a vain thing. Suppose, after an indictment found under 
 this law, the district attorney in commencing his preparation 
 for trial discovers that every witness has since died and he is. 
 therefore, without a particle of proof. Must he put the defendant 
 upon trial, impanel a jury, open his case, and then declare 
 that he is without the least proof to sustain the charge and leave 
 the court to direct an acquittal? The legislature cannot have 
 meant to require such a foolish thing. Tliis is, of course, an 
 extreme case, but it furnishes an illustration by which the 
 intent of the legislature, as affecting section 671, may well be 
 tested. This section (671) and the duties and penalties imposed 
 by sections 37 and 38 of the Liquor Tax Law are in harmony 
 rather than in conflict. Thus considered, the requirement of 
 section 37 is the performance by the district attornev of the 
 
268 DECISIONS Kklating to 
 
 duty oi' pi'osecution wlicuever there is luir reiison to believe, 
 from the evidence at commaud, or which by diligence may be 
 obtained, that a conviction can be, or, i! properly weighed, ought 
 to be had; and the penalty imposed by section ."W is lor a wilfui 
 or corrupt disregard oI this duty, m; at most, a careless neglect 
 to perform it. But where a diligent and honest investigation 
 discloses an utter want of necessary pr(jor, or if for any other 
 reason in the intelligent and honest (iischaige of his duty the 
 district attorney bccuuies satisfied that a conviciion cannot hi 
 had, he may avail himneU' of the provisions of section G71, and 
 recommend a dismissal without thereby ex|»osing himself to any 
 penalty whatever. It would, indeed, be monstrous to say that 
 a district attorney will malce hiiiiself liable to a fine and removal 
 from office for suggesting to tlir court a state ot facts and 
 recommending a dismissal of a]i indicliiiciit llicreon in a case 
 where the court might, and indeed oiii;lil "in furtherance of 
 justice" to direct a dismissal of its own motion, upon deriving 
 the same information from any other source. 
 
 Ordered accordingly. 
 
 Third Appellate Department, January, 1898. Reported. 25 App. Div. 68. 
 
 Henry IT. Lyman, as Stale Excise Commissioner of the State of 
 New York, Appellant, v. -Iohn C. Mi'(1uievey, Kcsixindent. 
 
 Liquor Tax Law — How, for its purposes, the population of a village is 
 to be determined. 
 To determine the population of a village under the Liquor Tax Law 
 tChap. 112 of the Laws of 1896), except in the case "of the incorporation 
 of a new city or village," either the last State or Federal census must be 
 resorted to; a certificate made December 16, 1896, by the "Chief of 
 Census Divirion, Department of the Interior" of the United States, "that 
 the paper hereto attached is a statement as nearly correct as can be 
 ascertained from the population schedules of the population, according 
 to the census of 1S90, of the towns and villages named therein," is not 
 competent proof for the purposes of such Liquor Tax Law of the popula- 
 tion of a village named therein. 
 
 ApE'iflAL by the plaintilf, Ifenry II. lAiiiaTi, as Slate lOxcise 
 Commissioner of the Slate of New York, from a judgment of the 
 Supreme (Jourt in favor ol' tin; defeiulaTit, eiilered in the office of 
 the cii'rk of the county of Saratoga on (he 4th day of October, 
 
Liquor Tax Law 26!) 
 
 IS'Ji, upon Ihe decision of tlic court rendered after a trial at the 
 Saralotia Special Term dismiissins' the complaint upon the merits. 
 
 M. Nussbaum, for the appellant. 
 
 Thomas Ol'onnor and J. W. Houghton, for the respondent. 
 
 I;AMioN, J. : Trior to ^lay 1, 1896, the plaintiff stated, pursuani 
 to clause 7 oi section 15 of the Liquor Tax Law (Chap. 113, Laws 
 of lS9(i), the amount of the tax assessed upon the business of 
 traHickiug in liquors in the village of Waterford, Saratoga 
 county, under class 1, subdivision 1, sccliou 11 of the act, at |200, 
 assuming fur the purpose that the population of the village was 
 more than 1,1:00 and less than 5,000. 
 
 The act itself makes the assessment. Section 11 provides: 
 "Excise taxes upon the business of traflicking in liquors shall be 
 of four tirailes and iissessed as follows:"' — then follow, in four 
 subdivisions, specifications of each grade or class respectively, and 
 in each siibdivisiou these words are used, ''There is assessed an 
 excise tax to be paid by," etc., and then the various sums assessed 
 as to each grade are fixed at sums varying in cities and villages 
 according .as the population in each is shown by the last State 
 census to be between the larger and smaller numbers specified in 
 each case. 
 
 With respect to the case before us, the 1st subdivision of 
 section 11 declares the assessment to be: "If in a village having 
 by said census a population of less than 5,000, but more than 
 1,1100, the sum of two hundred dollars; if in any other place, the 
 sum of one hundred dollai's." The section further provides that 
 "when the population of a city or village is not shown by the last 
 State census, it shall be determined for the purposes of this act 
 by the last United States census." 
 
 The defendant contended that the statement made by the 
 plaintitf of ''the amount of the tax assessed" (clause 7 of the 15th 
 section) was erroneous, since the population of the village of 
 Waterford was not shown either by the last State census or by 
 the last T'nited States census, and, therefore, that the amount 
 assessed by tlie act was flOO. 
 
 Section 12 of the act provides that "the several amounts to be 
 paid as taxes under this act are assessed yearly, commencing on 
 the first day of 3Iay, eighteen hundred and ninety-six, and shall 
 be paid yearly on the first day of May of each year." 
 
270 DiocisioNs Relating to 
 
 Acfordinulv, on May 1, 189G, the defendant paid the county 
 tirasiiriM- of Saratoga county $100 for a liquor tax certificate, 
 and in every other reispect coiiiplied witli the terms of the act. 
 The plaintiff thereafter stated liie amount of the tax assessed at 
 flOO, revoking his former statement of |200, and then advised the 
 county treasurer to acce])t (he sum of |100 and issue the 
 certificate to the defendant, and the county treasurer did so May 
 26, 1896. 
 
 Sul)se(|uently, upon examination of the enumerators' original 
 returns of the last United States census for the districts 
 embracing the town and village of Waterford, the plaintiff con- 
 cluded that the United States census did show that the population 
 of the village of Waterford was more than 1,200 and less than 
 5,000, and, thereupon, in December, ISOO, lie stated "the "amount 
 of the tax assessed" iit |200 for the year commencing May 1, 1896, 
 and tjien iiislrncled the coiinly treasurer to give the defendant 
 notice and to demand the mijiaid balance of the $200. This the 
 counly treasurer did; the defendant refused to pay the additional 
 $100. The treasurer demanded a irturn of the tax certificate; 
 this tlie defciidant refused ; tlie i)]aintiff tlieren])on caused a notice 
 of a lien for flOO to be filed with the <lerk of the town of Water- 
 ford upon (lie |ir()]ierty of defendant in tlie premises where he 
 carried on his liquor traffic, assuming to act under section 12, 
 and tlien commenced this action to loi-eclose the lien. 
 
 We think the judgment in favor of the defendant should be 
 affirmed. 
 
 The trial court found that the jKijjnlation of the village of 
 Waterford is not shown by either tlu' las( State or Federal census. 
 It was conceded lliat it is not shown by the las( Stati> census. It 
 was not shown by the United States census. It is clear from an 
 insjieciion of the enumerators' returns that if is not determinable 
 from them except by resort to extrinsic evidence, and the 
 extrinsic evidence oft'ered leaves the matter in uncertainty. The 
 State assumes that one census or the other will show the popula- 
 tion of the several villages, and itself assesses the tax accordingly. 
 It does not vest the plaintiff with the power (o make the assess- 
 ment, but only the power to state the amount whicli the statute 
 assesses. If either census fails to give the total of the population, 
 but gives the data from which the total can be computed, then the 
 census affords the necessary evidence of the determination by it; 
 but it may ))e doubted whether the enumerators' returns are the 
 
Liquor Tax Law 271 
 
 census ; tlicv I'uruish the data Iroiu which it is made, but are not 
 themselves the finished product. Be that as it may, the statute 
 does not give the phiintilf any power of deU^rmining the population 
 except in I he siugle case "of the incorporation of a new city or 
 village," when "Ihe State Commissioner of Excise is authorized 
 aud directed to cause au enumeration of the inhabitants to be 
 taken in such city or village." (§11, subd. 4.) This shows the 
 extent of his power in this respect. 
 
 Tlie plaintitV ollered, and the court excluded, a certificate made 
 December Iti, 1S!)(;, seveu aud a half months after defendant paid 
 the |100, by George S. Dounell, "Chief of Census Division, Depart- 
 ment of the Interior," "that the paper hereto attached is a 
 statement as nearly correct as can be ascertained from the popula- 
 tion schedules of the population according to the census of 1890 
 of the towns and villages named therein." The paper thereto 
 attached stated the jtopulation of the village of Waterford to be 
 4,1.'51. The ollicial character of Mv. Donnell was duly certified. 
 The statute assessed the tax on or before May 1, 1S9G. This 
 cei-tiflcate had no existence then, and, therefore, was then no part 
 <>( the census. 
 
 If admissible, the certificate is valueless as evidence, because 
 the statement that it is as nearly correct as can be ascertained 
 from the schedules leaves the degree of its correctness unknown. 
 Hut this certificate of the chief of the census division is not the 
 census itself, but only his declaration of what he thinks is the 
 best information he can extract from the population schedules. 
 It is not a certified copy of any paper, and, therefore, not 
 admissible as such under section SS2 of the United States Revised 
 Statutes, or section 914, Code of Civil Procedure. The trial court 
 properly excluded the certificate, and properly held that resort 
 could not be had to any other evidence than one or the other 
 census to show the population of the village. (Penple ex rcl. 
 Cramer v. Mcdberrij. 17 Misc. Rep. 8.) 
 
 The defendant paid the tax which the statute assessed, and no 
 larger sum could be lawfully required of him. 
 
 The objection was taken by defendant's answer and upon the 
 trial that the plaintiff has no legal capacity to sue or recover if 
 any cause of action against the defendant exists, but that the 
 same is vested in the treasurer of Saratoga county and in hiia 
 only. 
 
 We think the point well taken. There is no express authority 
 
Decisions Relating to 
 
 lou leiTed upon the plaintifl: to bring such an action as this, and 
 the scheme ul' the act shows that none is implied. ^Section 11 fixes 
 the amount to be paid for tax licenses in the various localities. 
 flection 13 pimides that "The taxes assessed and all fines and 
 penalties incurred under this act in counties containing a city of 
 the first class shall be collected bj and paid to the special deputy 
 commissioner for such county, and in all other counties to tha 
 couutv treasurer of the county in which the traffic is carried on, 
 except that the taxes assessed under subdivision 4 of section 11 of 
 this act, and all fines and penalties in connection therewith, shall 
 be collected by and paid to the State Commissioner of Excise, 
 and by him to the State Treasurer." The exception refers to 
 licenses for the sale of liquor on railroads, steamboats and other 
 vessels, the revenues from which belong to the State, whereas 
 only one-third of the revenues collectible by the county treasurer 
 belong to the State; two-thirds thereof belong to the town or city 
 in which the trafiic is carried on. The county treasurer must 
 pay them over accordingly. Sections 14, IT, 19. 20. 23, 29 and 36 
 are framed in harmony with the seheme that the county treasurer 
 is the collector of the assessments and penalties. 
 
 There are two sources of revenue under the act ; one the taxes 
 assessed by the .act itself, and the other the penalties, fines and 
 forfeitures for its violation; these are imposed by the court upon 
 the conviction <it the offender. The taxes, except in cities of the 
 first class, and upon railroads and vessels, are collectible in the 
 first instance by the county treasurer; the penalties are also 
 payable to and collectible by him. It is true that section 3i) 
 provides that upon conviction and sentence, if a fine or penalty be 
 im]Mised. a judgment for the amount thereof shall be docketed in 
 favor of the Commissioner of Excise against the offender. But 
 if the fine be paid into court, or collected by the sheriff upoH 
 execution, it shall be paid to the county treasui'er. 
 
 This case does not involve a fine, penalty or forfeiture, but it is 
 instructive to notice that these also come to that officer first or 
 last. 
 
 Incidental to his power to collect the tax is the power to 
 prosecute such civil actions and remedies as are appropriate for 
 the purpose, upon the principle that the right carries with it the 
 remedy. 
 
 The judgment should be affirmed, with costs. 
 
 All concurred. 
 
 Judgment affirmed, with costs. 
 
Liquor Tax Law 
 
 First Appellate Department, January, 1898. Reported. 25 App. DIv. 222. 
 
 In the Matter of the Petition of George Milliard^ Special Deputy 
 Commissioner of Excise, Respondent, for an Injunction 
 Restraining Annie (4iese. Appellant, from Trafficking in 
 Liquors. 
 
 Liquor Tax Law — A certificate is a contract and property — It can not be 
 Impaired or taken away by a subsequent enumeration. 
 
 A liquor tax certificate constitutes a contract between the person to 
 whom it is issued and the State; the right acquired thereby is property, 
 and its owner is entitled to the same protection in this property as in any 
 other. 
 
 A liquor tax certificate, issued on April 20, 1897, to a resident of the 
 annexed district of the city of New York, to take effect May first of that 
 year, is not rendered invalid by the fact that, upon an enumeration of the 
 inhabitants of such district, made under the authority of the excise com- 
 missioner, pursuant to chapter 312 of the Laws of 1897, taking effect 
 April twentieth, the enumeration being completed on April 25, 1897, the 
 tax required by the commissioner is larger than that paid by the holder ol 
 the certificate. 
 
 Such amendment does not become operative until the enumeration 
 required by it has been finished. 
 
 Appeal by Annie (iiese from an order of the Supreme Court, 
 made at the New York Special Term and entered in the ofiBce of 
 the clerk of the county of New York on the 5th day of Xovembei*, 
 1897, granting an injunction restraining the said Annie Giese 
 from trafficking in liquors upon certain premises until she shall 
 have paid the liquor tax assessed thereon and obtained a liquor 
 tax certificate in pursuance of law. 
 
 Arthur Furier, for the appellant. 
 
 Alfred R. Page, for the respondent. 
 
 RuMSEY, J. The respondent, as special deputy commissioner 
 of excise, has applied to this court upon petition and afQdavit 
 for an order restraining the appellant from trafficking in liquors 
 in the annexed district of the city of New York, until the liquor 
 tax assessed upon her premises shall have been paid and a 
 liquor tax certificate obtained in pursuance of the law. A cer- 
 tificate was issued to her in due form by the proper authorities. 
 
274 Decisions Kelating to 
 
 ou the 20tli of April, l.s'.iT, authorizing her to sell liquor for one 
 year from the 1st of May, Ib'.JJ. It is cuueeded that this certifi- 
 cate was valid at the time that it was issued, and it is not 
 claimed that the appellant has in any way violated the Liquor 
 Tax Law. The claim is that, by reason of the provisions of the 
 amendments to that law which took effect on the day on which 
 the certificate was issued to her, and which became opci-ative 
 five or six days afterwards, a certificate which was valid when 
 it was issued has ceased to be valid, and for that reason the 
 commissioner of excise is entitled to an injunctiou to restrain 
 her from contiuuiug to sell liquor under its authority. ISo 
 action has been commenced, but this is a special proceeding begun 
 pursuant to section '2'.) of the law (Chaii. 112, Laws of 18IJiJi 
 providing that if any person shall unlawfully traffic in liquor 
 without cibtaininL; a liquor tax certificate, the proper person, 
 who in this case is the special deputy commissioner, may present 
 a verified petition to a justice of the Supreme Court or to t 
 Special Term ol the court for an order enjoining such person 
 from trafficking in liquor; and the court is authorized, if it is 
 satisfied that such person is so doing, to issue the injunction. 
 This mode of procedure is established by the statute, and exists 
 only by its authority; and all the power which the court has 
 to issue an injunction in this special proceeding, no action 
 having been commenced, is derived solely from it. It is very 
 doubtful whether this case comes within the statute, because the 
 claim of the respondent is not that Mrs. Giese is trafficking in 
 liquor without obtaining a liquor tax certificate, but that the 
 tax certificate which she has obtained and which undoubtedly was 
 valid when it was issued, has, by the course of subsequent legis- 
 lation, become invalid. 
 
 But, passing that point, which is not insisted upon by the 
 appellant, it is necessary to consider whether, in fact, the appel- 
 lant had a valid tax certificate, and whether that certificate, if 
 valid when it was issued, became invalid by the siibs(^-|uent course 
 of legislation or the action of the excise department of the State. 
 The manner of procedure to obtain a liquor tax certificate is 
 especially prescribed in the statute. Every person who desires to 
 sell liquor must apply to the proper person in a form prescribed 
 by the statute for the issuance of such certificate to him. With 
 the application must be given a bond in a form also prescribed 
 by the statute. (Laws of 1896, chap. 112, §§ 17, 18.) This 
 
Liquor Tax Law 275 
 
 application must be made on or before the first day of May. 
 The tax is due and payable on the first day of May (§12), but 
 section 21 of the statute makes provision for cases in which 
 the tax shall have been paid not less than fifteen days before the 
 time fixed for the expiration of the former tax certificate, from 
 which it is fairly to be inferred that the tax may be paid by the 
 person making the application at the time of making it, and 
 the payment need not necessarily be postponed until the very 
 day on which it is due. It is further provided by section 19 ot 
 the act that, after the application and the bond shall have been 
 found to be correct in form, and the sureties upon the bond have 
 been approved, then, upon payment of the tax, the proper ofiScer 
 shall at once prepare and issue a legal tax certificate in the form 
 provided by the act. In this section is found the only authority 
 to issue a tax certificate, and it is to be noticed that it can be 
 issued only upon payment of the tax prescribed, and the paj 
 ment is a condition precedent; so that it is quite clear that the 
 oflicer upon whom is devolved the duty of issuing the certificate 
 can only issue it after the tax has been paid. The owner of the 
 certificate cannot be deprived of it except for some violation of 
 the law. The statute provides that under certain circumstances 
 this certificate may be surrendered, but the surrender can only 
 be made in the manner and at the time provided by section 25 of 
 the Liquor Tax Law, and when surrendered the ofiQcer receiving 
 it is authorized to repay to the owner the proper proportion of 
 the amount of the tax for the unexpired term of the certificate, 
 from the first of the month succeeding the time on which the 
 surrender is tendered; so that under no circumstances, after 
 the first day of May in any year, could the certificate be 
 surrendered and the owner receive back the full amount paid, 
 but in any case the commissioner is required to retain at least 
 one-twelfth of the tax. 
 
 The certificate, when it has been issued, constitutes a contract 
 between the person who received it and the State, by which, for 
 the consideration paid by the owner, the State has granted to him 
 an absolute right to traffic in liquors for one year from the first 
 of May subsequent to the date on which the certificate is granted, 
 and of which he can only be deprived for some violation of the 
 law so long as the statute remains in force. The right is a 
 valuable one. It is property, and the person who receives it has 
 the same right to be protected in this property as in any other for 
 
270 Decisions Relating to 
 
 which he has paid a valuable cousideration and of which he is 
 the owner. {I'ijoplc v. Durante, 19 App. Di\-. ^Uli; iMles v. 
 Matliusa, I'O id. 183.) 
 
 It appears in this case thai Mrs. Giese was the owner of 
 premises situated in that district of the city of IVew York which 
 was annexed in the year 18D5. On the 20th of April, ls!J7, she 
 apjjlied in proper form for a liquor tax certificate to entitle her 
 to traffic in liquors from the first of 3Iay following. The tax 
 required from her at that time was $100. This sum she paid, and 
 on that day a certificate in due form was issued to her. There 
 is no doubt, and it seems to be conceded, that the certificate then 
 issued was valid, and, in the absence of any change in the statute, 
 would have been sufficient to protect her in the lawful conduct 
 of the business for the year during which it a\;ks in force. i)n 
 the day ou which the application was niavle an amendment to 
 the Liquor Tax Law became a law, by which it was provided that 
 if, since the last State enumeration, the boundaries of a city 
 should have been changed by the addition of territory not in the 
 same judicial district, such annexed territory should not be 
 deemed a part of the city for the purpose of determining the 
 amount of excise tax therein, but the inhabitants of that terri- 
 tory should be enumerated for the purpose of determining the 
 amount of the tax, and when the enumeration had been had the 
 lax assessed therein should be the same as that provided for 
 in other places containing the same population. (Laws of 1897, 
 chap. 312.) Pursuant to that amendment an enumeration was 
 taken under the authority of the commissioner of excise, which 
 was completed on the 2.")th day of A])ril, 1897, and it was deter- 
 mined by him that the amount of the tax to be paid by persons 
 in the annexed district in which ?ilrs. Giese lived and did business 
 should be |350 instead of .flOO as it had been. No notice seems 
 to have been given of this to the appellant until the 10th day of 
 May, 1897, at which time notice was sent to her that the tax 
 assessed upon the business in her locality had been increaseQ to 
 |350, and she was required either to pay the additional $250 or to 
 cease doing business under the certificate which had been issued 
 to her. It is quite clear that, although the law may have taken 
 effect on the twentieth of April, it could not become operative 
 until the enumeration required by it had been finished. There 
 was no provision in the statute that the issuing of certificates 
 should be delayed until that had been done, nor was there any 
 
Liquor Tax Law 277 
 
 requirement that it should be tloue ut any particuhir time, but 
 the Legislature seem to have been willing that, until the enumer- 
 ation was taken, the rate to be paid for certificates should 
 continue to be the same as that provided for by the act before; 
 it was amended. ISfor was there anything in the act requiring 
 that when it did become operative it should apply to all cer- 
 tificates which had been issued before the enumeration had been 
 taken, but it seems to have been the intention of the Legislature 
 that no change should take effect until the enumeration had 
 been taken by the commissioner, because it is provided expressly 
 that the tax assessed in each place enumerated shall be the same 
 as that provided for the other places containing the same popu- 
 lation. This provision necessarily implies that there can be no 
 increase in the amount of the tax until the enumeration has 
 actually been had. This is the plain construction of the statute 
 and it accords with the well-settled rule that, so far as vested 
 interests are concerned, every statute shall be deemed to be 
 prospective in its operation except so far as the Legislature, 
 within the limit of its powers, shall have expressly enacted to th'? 
 contrary. (Dash v. Van Kleeclc, 7 Johns. 477.) The certificate 
 issued to the appellant, which was valid when she received 
 it and under which she was lawfully trafQcking in liquor, was 
 not intended to be made invalid by an act which subsequently took 
 effect. There was no way in which this certificate could have 
 been revoked by the excise commissioner. The appellant could 
 not have been required to give it up and receive the money which 
 she had paid for it, because the right to surrender is exclusively 
 given by the statute to the owner of the certificate, and upon 
 that surrender there must be deducted from the sum paid by her 
 the pro rata amount of the tax until the first day of the month 
 after the certificate has been surrendered. There is no provision 
 anywhere in the statute authorizing the commissioner to repay 
 to any holder of a certificate the full amount of the tax whicir 
 he has paid and receive back the certificate. Section 13 of the 
 statute prescribes how he shall dispose of all the money which 
 he receives in payment for the certificates, and it leaves him no 
 discretion to repay that money and no authority to devote it 
 to any other purpose than that provided for in the statute. There 
 is no intention on the part of the Legislature anywhere in the 
 act or in the amendments to give to the commissioner of excise, 
 or to those .persons who shall perform his duties, any right or 
 
278 Decisions Relating to 
 
 autkority to interfere with ii certificate alter it shall have been 
 issued, or to revoke it, or to receive back the money which has 
 been paid for it. This certificate being valid vs^hen it was issued, 
 there is no provision iu the statute lor taking away from the 
 holder of it the protection which the statute gave her. Under 
 it she was entitled to traffic iu liquors during the time for which 
 the certificate was granted, and in the absence of any provision 
 by the Legislature authorizing or requiring its revocation, her 
 right was complete and perfect, and she could not be interfered 
 with. 
 
 For these reasons it was error to grant this injunction, and 
 the order should be reversed and the petition for an injunction 
 dismissed. As this is a special proceeding, costs as of an action 
 should be granted to the appellant. 
 
 Van BRU^■T, P. J., Barrett, Patterson and O'Brien, JJ., coii- 
 curred. 
 
 Order reversed and petition for injunction dismissed with costs 
 as of an action to the appellant. 
 
 Supreme Court, Herkimer Special Term, February, 1898. Reported. 
 
 22 Misc. 560. 
 
 Joseph W. Baker, Plaintiff, v. Lorenzo O. Bucklin, Individually 
 and as County Treasurer of Herkimer County, Defendant. 
 
 Liquor Tax Law — Payment, for a certificate, not recoverable — Population 
 of a village not shown by the census. 
 
 Where it is conceded tliat the population of a village is at least 4,000, 
 a holder of a liquor tax certificate, voluntarily paid for upon that basis, 
 can not, merely because the population of the village is not stated, 
 separately from that of its town, in either the last State or United 
 States census, subsequently recover of the county treasurer the difference 
 between that rate and the rate fixed for a village whose population is 
 under 1,200; and the fact that the state commissioner of excise has not 
 caused any enumeration of the village to be made under the statute (Laws 
 nf ISflfi, chap. 112, § 11, subd. 4). is immaterial. 
 
 Action brought to recover amount claimed to have been paid 
 by the plaintifi' for a liquor tax certificate, in excess of the amount 
 required by law. 
 
LiQUOU Tax Law 279 
 
 William J. Ciardinier, lor I'laintitl'. 
 E. K. Sheldou, fur Uel'eiidaiil. 
 
 McLexNnan, J.: Ou or about the 1st day of May, 1896, one 
 John T. Kei-rivau, who was then county treasurer of Herkimer 
 county, upou proper application to him made, issued to the 
 plaintiff liquor tax certificate No. 25,103, in and for the village oi! 
 Herkimer, and received from the plaintiff the sum of |200 in 
 payment therefor. 
 
 Within ten days thereafter said Kerrivan, as such county 
 treasurer, turned over the moneys so received from the plaintiff to 
 the State of New York and to the village of Herkimer, as required 
 by law. 
 
 On the 1st day of January, 1897, the defendant Lorenzo O. 
 Bucklin became county treasurer of Herkimer county, having 
 succeeded said John T. Kerrivan, and ever since has been and 
 now is such treasurer, and as such received from his predecessor 
 all moneys, books and papers in his predecessor's hands. None of 
 the moneys, however, which were received from the plaintiff were 
 turned over to the defendant, but the defendant has had in his 
 hands, at various times, moneys received for issuing liquor tax 
 certificates, amounting in the aggregate to a sum largely in excess 
 of plaintiff's claim. 
 
 Before the commencement of this action the plaintiff duly 
 demanded of the defendant |100, the excess claimed to have been 
 paid for the liquor tax certificate issued to him as aforesaid. 
 
 Section 11, subdivision 1 of the Liquor Tax Law is as follows: 
 
 "Excise taxes upon the business of trafiScking in liquors shall 
 be of four grades and assessed as follows : 
 
 "Subdivision 1. Upon the business of trafBcking in liquors to be 
 drunk upon the premises where sold, or which are so drunk, 
 whether in a hotel, restaurant, saloon, store, shop, booth or other 
 place, or in any outbuilding, yard or garden appertaining thereto 
 or connected therewith, there is assessed an excise tax to be paid 
 by every corporation, ' association, copartnership or person 
 engaged in such traffic, and for each such place where such traffic 
 is carried on by such corporation, association, copartnership or 
 person, if the same be in a city having by the last State census 
 a population of fifteen hundred thousand or more, the sum of 
 eight hundred dollars ; * » • if in a village having by said 
 
280 Decisions Relating to 
 
 census a population of less than five thousand but more than 
 twelve hundred, the sum of two hundred dollars ; if in any other 
 place the sum of one hundred dollars." * * * 
 
 Bj the last paragraph of subdivision 4 of said act it is 
 provided : 
 
 "When tlie population of a city or village is not shown by the 
 last State census, it shall be determined for the purposes of this 
 act by the last United States census, and if not so shown by reason 
 of the incorporation of a new city or village, the State Commis- 
 sioner of Excise is authorized and directed to cause an 
 enumeration of the inhabitants to be taken in such city or 
 village." * « * 
 
 It appears by the evidence in this case that the population of 
 the village of Herkimer was not separately returned and stated 
 by the last State census or by the last United States census 
 referred to in the above act, but the village of Herkimer was 
 reported and stated in each census as a part of the town of 
 Herkimer, and it ajipears that there was no separate enumeration 
 of the inhabitants of the village, but the enumeration in each case 
 was of the entire town of Herkimer. So that there is no statement 
 in either census which shows the population of the village of 
 Herkimer separately. The population of the entire town of 
 Herkimer is shown bv the last State census to be 5,150, and con- 
 sequently, if the population of the village was not at least 1,200, 
 the population of the town would be at least 3,950. 
 
 We think that the court may take judicial notice of the fact 
 that the population of the town of Herkimer, outside of the village 
 of Herkimer, at the time of the taking of the last State census, 
 was not 3,9.'(), and, therefore, that the population of the village 
 of Herkimer at that time, as shown by the last State census, was 
 in excess of 1,200. 
 
 It was conceded upon the trial that, at the time the liquor tax 
 certificate was applied for by the plaintiff and issued to him by 
 the then county treasurer, the actual population of the village 
 of Herkimer was at least 4,000, and such a number as to entitle 
 the county treasurer to demand the sum of $200 from the plaintifC, 
 the amount which he received. At the time the money was paid 
 to the then county treasurer by the plaintiff, no question was 
 raised as to the population of the village of Herkimer, and no 
 question was made as to the amount of tax which should be paid 
 by the plaintiff, but it may be held, notwithstanding that fact. 
 
LiQt OK Tax Law 281 
 
 that suck payment by the plaiutifl: was uot voluntary, it having 
 been demanded of him and paid by him pursuant to statute. 
 
 it is urged on behalf of the plaintiff that, because the 
 jjopulation of the village of Herkimer is not separately stated 
 in the last State census, nor in the last United States census, 
 and because it does not appear, by separate statement, that the 
 population of the village of Herkimer was more than 1,200 at 
 the time the certificate in question was issued to the plaintiff, 
 the county treasurer should only have demanded and received 
 for the certificate in question the sum of |100, notwithstanding 
 the population of the village was actually 4,000, and largely m 
 excess of the number required to entitle such county treasurer 
 to demand and receive the sum of $200 for such certificate. 
 
 In effect, the plaintiff concedes that he paid the exact amount 
 which he should have paid for the right to engage in the liquor 
 business in a village having a population of the village of Herki- 
 mer, but insists that, because such population was not shown 
 by a separate statement in either census referred to, he should 
 pay upon the basis that the population was less than 1,200, 
 although (-onceding that it was in fact 4,000. It is not believed 
 that such is the proper construction of the statute in question. 
 It is specifically provided by the act referred to that in villages 
 having a population of more than 1,200, |200 must be paid for 
 a liquor tax certificate which will entitle a person to engage in 
 the liquor business in such village. 
 
 As a ready means of ascertaining the population of a mun- 
 icipality where it is close or in dispute, it is provided by said 
 act that recourse may be had t(_> the last State or United States 
 census. It does not follow that where the population of a 
 village is well known, and is conceded to be largely in excess of 
 the number which would require the payment of $200 for a liquor 
 tax certificate, that a less sum should be paid because such 
 population is not separately stated in the census referred to. 
 Such a construction of the statute would be unreasonable and 
 unjust, and would permit unjust discrimination as between 
 villages, and there is no method, provided by the statute, by 
 which such an uniust discrimination could be avoided, in case 
 the contention of the plaintiff should prevail. 
 
 The last paragraph of subdivision 4 of the act only provides 
 for a new enumeration of the inhabitants of a village where the 
 population is not shown, by the last State census nor by the last 
 
DECISIONS Kelating to 
 
 United ►States census, " by reason of the incorporation of a new 
 city or village"; in ttiat case the State coiumissioucr of excise 
 is authorized and directed to cause an enumeration of the 
 inhabitants to be taken in such city or village. 
 
 So that, in the case at bar, if the contention of the plalntifl: is 
 to prevail, notwithstanding the population of the village of 
 Herkimer is conceded to have been 4,000 at the time in question, 
 notwithstanding the fact that the court must take judicial notice 
 of such population, and notwithstanding the further fact that, 
 from the last State census, it may clc.u-ly be asieitained that the 
 poitulatiiin of the village of Herkimer was in excess of 1,200. 
 apjtlicants for li((uor tax cert ilica It's in said village can only be 
 required to [lay upon the basis and upon the assumption that 
 the population of said villa.iic was less than 1,2(10. 
 
 As brf(ire said, it is believed that such construction would be 
 unreasonable and unjust. The plaintiff paid for the cei-tiflcate 
 issued to him exactly what he should have paid. He paid the 
 amount, knowing what the poimlation of the village was, or at 
 least knowing that it was lari^cly in excess of 1,200, and he is not 
 entitled to recover back any ])art of the sum so paid simply 
 because the jiopulation of said village is not sejinrately stated in 
 the last State census, nor in the last United States census. 
 
 It is unnecessary to considev any of the other questions raised 
 by defendant's counsel. The plaintiff's complaint should be 
 dismissed, with costs. .Tndgment is ordcM-ed accordingly. 
 
 Ordered accordinglv. 
 
 Fourth Appellate Department, February, 1898. Reported. 25 App. DIv. 428. 
 
 The People op' the State of New York ex rel. .Ta^ies W. 
 BAr.LEY, Respondent, v. John B. Hamilton, as Treasurer of 
 the County of Monroe, Appellant. 
 
 Liquor Tax Law — Construction of the exemption given to a "place" within 
 200 feet of a church or school, where liquor was sold therein on 
 March 23, 1896, and the traffic was thereafter abandoned. 
 
 The exception contained in subdivision 2 of section 24 of the Liqiior 
 Tax Law (Laws of 1896, chap. 112, as amended by Laws of 1897, 
 chap. 312), providing that the prohibition therein imposed upon traffic in 
 liquors within 200 feet of a building used exclusively as a church or 
 
Liquor Tax Law 283 
 
 school, shall uot apply to a place in which on March 23, 1896, "such traffic 
 in liquors was actually, lawtully carried on," is not applicable to premises 
 within 200 feet of a church in which the traffic in liquor, although carried 
 on therein on March 23, 1896, was thereafter discontinued for a period 
 of two months, at the end of which time a new tenant of the premises 
 undertook to resume the traffic. 
 
 Appeal by the defendant, John B. Hamilton, as treasurer of 
 the county of Monroe, from an order of the Supreme Court, 
 entered in the ofiSce of the clerk of the county of Monroe on the 
 11th day of October, 1897, directing the defendant as county 
 treasurer to issue to the relator a liquor tax certificate. 
 
 This is a proceeding by writ of certiorari under section 28 of 
 the Liquor Tax Law (Laws of 189G, chap. 112, as amended by 
 Laws of 1897, chap. 312) to revicAv the action of the treasurer 
 of Monroe county in refusing to issue a liquor tax certificate to 
 the relator. The facts of the case, concerning which there is 
 no dispute, are as follows, viz.: 
 
 On the 23d day of March, 1896, traffic in liquors was actually 
 and lawfully carried on by the occupants of the premises in 
 question, which are situate on the southeast corner of Reynolds 
 street and Bronson avenue, in the city of Rochester, and within 
 two hundred feet of a building occupied exclusively as a church. 
 Such traffic was continued down to and including July 1, 1897, 
 when it ceased and the premises have not since been lawfully 
 used for that purpose. 
 
 On the 31st day of August, 1897, the relator leased the 
 premises in question, intending to occupy and use them for 
 the same purpose for which they had been occupied and used by 
 the prior occupant, and to that end applied to the treasurer of 
 Monroe county for a tax certificate on the 1st day of September, 
 1897. His application was in due form and accompanied by the 
 required bond, but it was refused upon the ground that the 
 premises for which a tax certificate was sought were within 
 two hundred feet of a building used exclusively as a church. 
 
 Charles E. Bostwick and N. N. Stranahan, for the appellant. 
 
 f^ol Wile, for the respondent. 
 
 Adams, J. It is obvious from a mere reading of the foregoing 
 statement of facts that the sole question to be considered upon 
 
iS-1 Dkcihions Relating to 
 
 this review is the construction which shall be given to certain 
 
 provisions of subdivision 'Z of section 2-1 of the Liquor Tax Law. 
 
 This section, so far as its language is of any importance in this 
 
 connection, reads as follows: 
 
 •' § 24. Traffic in liquors shall not be permitted: 
 ii -I * * * 
 
 "2. * * * within two hundred feet of a building occupied 
 exclusively as a church or schoolhouse; * * * provided, 
 however that this prohibition shall not apply to a place which 
 on the twenty -third day of JMarch, eighteen hundred and ninety- 
 six, was lawfully occupied for a hotel, nor to a place in which 
 such tiatlic in liquors was actually, lawfully carried on at that 
 date. * * * " 
 
 \\hile it is conceded that the relator's place of business xs 
 within two hniidic d feet ol' a building occupied exclusively as a 
 church, it is nevertheh'ss contended that he brings himself within 
 the exception to the section just quoted by reason of the fact 
 that the business of trailicking in liquors was lawfully carried 
 on ujiou the same premises at the time the Liquor Tax Law went 
 into operation; and the fact stated being true, such contention 
 must prevail, unless llie privilege granted by the exemption 
 chuise was lost in c(inse(jneiice of the abandonment of the 
 business at this jiarticular place for the peridd of two months 
 subsequent to the time specified in the statute. 
 
 This statute was doubtless enacted under the police power of 
 the State; and while its lunguage should receive a just and 
 reasonable construction, the object and intent of its enactment 
 should not be lost sight of. The main object which the 
 legislature had in view was, of course, to confine the traffic In 
 li(|uoi-s within certain limits and to surround it with well-defined 
 restrictions. One of these restrictions • is that the church ov 
 the school shall not be brought into too close proximity to the 
 saloon; hence the limitation of two hundred feet. But while 
 endeaviu-ing to protect the church and school from the demoral- 
 izing influence of the saloon, the legislatui-e was at the same 
 time careful to lecogiiize the fact that dealers in liquor might 
 have certain vested rights which ought not to be interfered with, 
 and, therefore, it enacted that where at the time the law went 
 into effect a party was lawfully engaged in the sale of liquors 
 at any particular place, such traffic might be continued at that 
 place, although it was within the prohibitory terms of the statute 
 
Liquor Tax Law 285 
 
 This exception was manii'estly designed to protect parties who, 
 under the sanction of former statutes, had incurred the trouble 
 and expense of buying, renting or fitting up places in which 
 to conduct the saloon business. 
 
 A provision similar to the one which we are now considering 
 was contained in the act of 1892 (Chap. 401), as amended by 
 chapter 480 of the Laws of l.SUo. It is claimed, however, that 
 under that act the privilege was personal in its character, while 
 under the present law it is one \\iiich is impressed upon the 
 place, and not the individual. 
 
 This distinction seems to us somewhat forced, but whatever 
 merit there is in it, it must be admitted that the concession, 
 whether it be to the person or to the place, is one which is clearly 
 an exception to the general policy of the law, and consequently 
 it is one which should receive a strict interpretation. In a 
 recent case it was said to be '• a familiar canon of construction 
 that a thing which is within the intention of the makers of a 
 statute is a.s much within the statute as if it were within the 
 letter; and a thing which is within the letter of the statute is 
 not within the statute, unless it be within the intention of the 
 makers." {Riggs v. Palmer, 115 N. Y. 506, 509.) 
 
 And we have the very best authority for declaring that when 
 the intention of the lawmakers is once ascertained, it becomes 
 the duty of judges to give such a construction as shall repress 
 the mischief and advance the remedy aimed at. (I Kent, 465.) 
 
 Applying then the rule thus stated to the present case, 
 it becomes our obvious duty to so construe the exceptional pro 
 vision under consideration as that it shalL conform if possible, 
 to the general design and policy of the statute as a whole. We 
 have stated what that policy is, and we think it only remains to 
 show how easily it may be thwarted in order to demonstrate 
 the fallacy of the relatoi-"s contention; for if an abandonment of 
 the traffic in liquors at a particular place for the period of 
 two months does not work a forfeiture of the privilege conferred 
 by the statute, then an abandonment for a much longer period 
 of time would not have that effect ; and with the rule contended 
 for once established, there would apparently be no limitation 
 of time within which a party might claim the privilege of selling 
 liquors at some particular place, provided he could show that 
 somebody else was lawfully engaged in the same business at 
 the same place on the 23d day of March, 1896. Certainly the 
 
286 Decisions Relating to 
 
 Legislature could not have intended that the protection sought 
 to be given to our public schools and churches should tlius prove 
 to be of so little value. ^Ve do not wish to be understood as 
 holding that mere change of proprietorship necessarily works 
 a forfeiture of the privilege conferred by subdivision 2 of section 
 24 ; indeed, we can conceive of cases where the temporar}' nljun- 
 donment of the sale of liquors incidental to such a change would 
 be so brief as to constitute no appreciable interruption to the 
 traffic. But where, as in the present case, the business of one 
 proprietor is closed up and no resumption thereof attempted by 
 ills successor for sixty days, we think that, within the spirit of 
 the law, the privilege which it grants must be regarded as 
 surrendered. 
 
 The views to which we have thus given expression are, cis we 
 believe, not only in consonance with every principle of justice 
 and propriety, but they are likewise in harmony with those 
 expressed in numinous instances where a construction of this 
 and similar statutes has been involved. (J'rople c.r rel. Cairns v. 
 Murray, 14S N. Y. 171; People cv rel. Gentilesco v. Excise Board, 
 7 Slisc. Rep. 41.'">; Peaplc e.r rel. Siceencij v. Lanimcrts, 18 id. 343; 
 afifd., 14 App. Div. (;2S; Mutter of Ritchie. 18 Misc. Rep. 341; 
 Matter of Ziiizow. Id. d.".". ; Matter of Korndorfer, N. Y. L. J., 
 Nov. 23. 18!)7.) 
 
 Our conclusion of the whole mitter, therefore, is that the 
 order appealed from should he reversed and the writ dismissed, 
 with fifty dollars costs and disbursements to the appellant. 
 
 -Vll concurred. 
 
 Order reversed nnd the writ dismissed, with fifty dollars costs 
 and disbursements to the appellant. 
 
Liquor Tax Law 287 
 
 Second Appellate Departrrent, March, 1898. Reported. 26 App. Div. 564. 
 
 The People of the State op New York, Appellant, v. Conrad 
 Stock^ Respondent. 
 
 Liquor Tax Law — An offender against its provisions can not be sentenced 
 to an imprisonment of one day for each dollar of the fine unpaid — 
 Discharge under a writ of habeas corpus. 
 
 The ijrovisions of sections 484 and 718 of tlie Code of Criminal Procedure, 
 providing that a judgment which imposes a fine may also direct that the 
 criminal be imprisoned until the fine be paid, for a term not to exceed one 
 day for each dollar of the fine, are not applicable to a conviction under 
 the Liquor Tax Law (Laws of 1S96, chap. 112, §34), which makes a sale 
 of liquor by one not having a liquor tax certificate a misdemeanor, punish- 
 able by fine and imprisonment, but contains no specific authority to 
 sentence the criminal to imprisonment for non-payment of the fine, the 
 latter statute being designed to cover the whole subject, both prescribing 
 the punishment and the manner in which the fine shall be collected. 
 
 Where in such a case a sentence of imprisonment has been imposed for 
 the non-payment of the flue, the prisoner may be released under a writ of 
 habeas corpus. 
 
 Api'eai. by the plaintiff, Tbe People of the State of New York, 
 from an order of the Supreme Court, entered in the office of tha 
 clerk of the county of Dutchess on the 18th day of December, 
 18l»7, directing the sheriff of the county of Dutchess to discharge 
 the defendant from his custody. 
 
 Oeorge Wood, for the appellant. 
 
 Vliarles A. Hopkins, for the respondent. 
 
 i 
 Goodrich, P. J. The defendant, Stock, was convicted in the 
 .county court of Dutchess county on December 13, ISDT, under 
 section 34 of the Liquor Tax Law (Laws of 1896, chap. 112), of 
 selling liquor withotit having obtained a liquor tax certificate, 
 and was sentenced to pay a fine of .|300, and in default of pay- 
 ment, to stand committed tfi the county jail for a term not to 
 exceed one dav for each dollar of the fine. On December 
 eighteenth he was discharged under a writ of habeas corpus, the 
 order being based upon the theory that the statute did not 
 authorize imprisonment for non-payment of the fine. Two ques- 
 tions arise: First, the jurisdiction of the county court to 
 
1!SS I»i:i:isioNS ReIvATInq to 
 
 imiHiMc the si'iilciicc of iiii|)i-ist)niriciil, and scruitid, the right of the 
 court to review it upon :i wril (if habeas corpuH. 
 
 v'^eetion M4 of Ihe l>i((nor Tax Law (5 ]{. S. [!)th ed.] '.'AWZ) pro- 
 vides as follows : 
 
 "§:!t. Penalties for violation of this aet.—l. Any corporation, 
 association, coiiarl nership or person trailickin^- in liquors who 
 shall iie.ukHt or letiise to make application for a liquor tax certifl- 
 eale or j^ive the bond, or i)ay tlie tax im[)ose(i as requii-ed liy this 
 act, shall be guilty ot a misdemeanor, and upon conviction thereof 
 shall he ])unis)ied by a fine of not less than two hundred nor more 
 than two thousand dollai's, jn'ovided such fine shall e(|nai at 
 least twice the amount of the tax tor one year, imposed by this 
 act upon the kind ot tra.flic in li(piors lan-ied on, where carried 
 on, and may also lie imprisoned in a county jail or a [lenitent iai'y 
 tor the Icrm of not moi'c than one year." 
 
 This section provides for the iidliction of a fine of not less than 
 $200, and, in addiliou, imprisonment in Ihe c((unty jail for not 
 more than one year. It does no! ])ro\ idi' for a commitment to the 
 counly jail I'oi- a term not lo exceed one day for each dollar of the 
 fine, hut il is claimed that as the Tji(]uor Law declares the act a 
 misdemean(ji', it falls within the jirovisions ot sections 4S4 and 71.S 
 of tlie Code of Criminal Proi-ednre, which I'ead : 
 
 " § 4S4. JiKlffiiiciil hi jKii/ fine * * * .\ judgment that the 
 defendant ]ia\' a fine may also direct that he be imprisoned until 
 the fine be salislied. s])ecil'ying the extent of the imprisonment, 
 which cannot exceed one day tor every one dollar of the fine." 
 
 "§ 7lS. Jiidf/Hiciii (if iiiipri.':<iiiiii('iit, iinfil fiii<^ he paid ; crfcHt 
 of imprlndiniiriit. — A jiid,i;irient that the defendant jiay a fine may 
 also dii-e( I that he b" imprisoned until the fine be satisfied, specify- 
 ing the extent ot the imprisonment, wliich cannot exceed one day 
 for e\ci-y one dollar <it the fine." 
 
 The question aiases whether sections 4S4 and 71S are applicable 
 to the imprisonment mentioned under section ;!l of the Liquor 
 Tax Ijaw, which was passed subsi'{piently to the cited sections 
 of the Code of t'l-iminal Procedure. 
 
 Section :',(; of the Li(|uor Tax Law (5 R. S. [9th ed.] .'',404) pro- 
 vides that the fine must be dockelcnl as a judgment against the 
 person convicted, in favor ot the State Commissioner of Lxcise, 
 and if the judgment shall not be jiaid within five days after the 
 sentence, the clerk of the county shall issue an execution against 
 the propei'ty of the judgment debtor, and that the levy thereunder 
 
Liquor Tax Law 289 
 
 shall take precedence of any and all liens, mortgages, convey- 
 ances or incumbiauces, on the property of the judgment debtor, 
 subsequent to the docketing of the judgment; and that no prop- 
 erly of the debtor shall be exempt from such levy and sale, and 
 that where the debtor has furnished the bond authorized by section 
 LS of the act, the amount of the judgment may be collected from 
 the sureties on such bond. 
 
 The learned judge at Special Term held that the imposition of a 
 fine merely was in no sense a criminal punishment, as the statute 
 provided that the debtor might be punished by imprisonment in 
 addition to the fine, and that he could not be imprisoned simply 
 for non-payment of the fine. I think this view is correct. 
 
 The 3J:th section of the Liquor Tax Law provides a specific pun- 
 ishment for the offense therein defined, and the County Court 
 could resort alone to it and section 36 for the punishment and 
 power to enforce sentence. It contains specific directions for 
 sentence for the offense and must be strictly construed. No 
 sjiecifie authority can be found in its provisions for imprisoning 
 the defendant for non-payment of the fine. In this view of the 
 completeness of the statute within itself and of all matters re- 
 lating to offenses thereunder, I am further confirmed by its pro< 
 vision providing for the giving of a bond by each applicant for a 
 tax certificate. It is true that the offense for which the petitioner 
 was convicted was that he neither applied for nor obtained the 
 certificate; but I refer to the bond simply for the purpose of 
 illustrating the reach of the statute. 
 
 Still further confirmation of this view is found in Matter of 
 N. Y. Instituikm (121 N. Y. 234, 239), where the court held " that 
 where prior laws are revised and consolidated into a new act, 
 siicli act is to be deemed to contain the entire law upon the sub- 
 ject, and that a jtrior provision of law which is dropped, is to be 
 regarded as repealed. In Ellis v. Paige (1 Pick. 43) it is said: 
 ' It is a well-settled rule that when any statute is revised, or one 
 act formed from another, some parts being omitted, the parts 
 omitted are not to be revived by construction, but are to be con- 
 sidered as aninilled. To hold otherwise would be to impute to 
 the Legislature gross carelessness or ignorance, which is alto 
 gether inadmissible.' In Bartlcit v. King (12 Mass. 537) it was 
 held that a .-ubsequent statute revising the whole subject-mattei 
 of a former one, and evidently intended as a substitute for it, 
 although it contains no express words to that effect, must, upon 
 19 
 
i:;hi Dici.'ision.s Relating to 
 
 piiiuiplcs of law, as well as in reason and coniniou sense, operate 
 to repeal the I'ornier." 
 
 There is authority tor holding that, under statutes which define 
 certain ofienses as misdemeanors, a writ ol Iccari fucias may 
 be issued to entorce the payment of a fine, but these c;ises arose 
 under statutes which did not contain any specific method of 
 enforcing the collection of the fine. 
 
 This subject was before the court in the case of People c.i: rel. 
 Oatchj V. Sage (13 App. Div. i;>5), where, on conviction for 
 assault in the second degree, the prisoner was sentenced to be 
 imprisoned in the State prison and to pay a fine of -f730, and, 
 in default of payment of the fine, that he be further imprisoned 
 in said State prison until the fine was paid, not exceeding 730 
 days. This seulcuce was itronounrcd under sei-tlon 221 of the 
 I'enal Code, which pro\ ides that the crime shall be punishable 
 " by imprisonment in a ijenitentiary or State jnison for a term 
 not exceediut; five years, or by a fine of not more than one 
 thousand dollars, or both." In this section there is no special 
 [irovision for imprisonment in default of the payment of the 
 fine, but this is sujiplcmented by section 181, above cited, and 
 this court (p. VM\ said: " If the judgment cannot direct that the 
 defendant stand committed, after tlie expiration of five years, 
 till the fine be paid, the provision that he may both be imprisoned 
 for five years and fined S<1,00(I is rendered nugatory." 
 
 In the case at bar, liowe\ er, there is a special provision for the 
 enforcement of the fine, and this differentiates it from the Sa£;e 
 case. 
 
 Turning now to the opinion in Colon v. Lisl< (13 App. Div. 195, 
 201; aflfd., 153 N. Y. 18S), referred to in People v. fiafje. (supra), 
 this court held that, by the common law, the writ of lerriri fa'^ias 
 to enforce the payment of a fine, was issuable by the common law 
 on the ground that " it was an attribute of sovereignty authoriz- 
 ing the levy for a debt due to the crown by the united process 
 against the body, the lands and goods of the defendant." This 
 action was brought under the statute forbidding trespassing OQ 
 oyster beds (Chni). 974, Laws of 1895, as amended by chap. 383, 
 Laws of ISOC). The statute declared that any person who 
 violated its provisions should be guilty of a niisdeuu'anor. There 
 was in this statute no provision for the issuing of an execution 
 to enforce .the ]iayment of the fine, although the vessel and 
 property used in the commission of the offense were made liable 
 
Liquor Tax Law 291 
 
 to seizure and sale. As the statute declared the offense a misde- 
 meanor, recourse must be had to tlie sections of the (Jriminal 
 Code, already cited (iSi and 718), and to section 15 of the Penal 
 Code, which reads : " A person convicted of a crime declared to 
 be a misdemeanor, for which no other punishment is specially 
 prescribed by this Code, or by any other statutory provision in 
 force at the time of the conviction and sentence, is punishable 
 by imprisonment in a penitentiary or county jail for not more 
 than one year, or by a fine of not more than five hundred dollars, 
 or by both," 
 
 The case at bar again differs from this case in the important 
 fact that specific provision is made in the Liquor Tax Act for the 
 collection of the fine. The personal liberty of the prisoner being 
 involved, I think the statute must be strictly construed, and that 
 it does not authorize any commitment of a prisoner for non-pay- 
 ment of the fine imposed. 
 
 Second. I have no doubt that the (luestion involved may be 
 properly adjudicated upon a writ of habeas corpus, for the 
 reason that the Trial Court had no jurisdiction or power, under 
 the Liquor Tax Law, to impose a sentence of imprisonment for 
 non-payment of the fine. 
 
 In the case of People ex rcl. Tweed v. Lisconib (60 N. Y. .559 '• 
 the court held that where the record shows that the judgment is 
 not merely erroneous, but is such as could not, under any circum- 
 stances, or upon any state of facts, have been pronounced, the 
 case is not within the exemption of the Habeas Corpus Act, 
 excluding from its benefits persons committed by virtue of a 
 judgment or decree of a competent tribunal, or if it appear that 
 the judgment is in excess of that which by law the court had 
 power to make, it is void for the excess, and can be so declared, 
 and that the prisoner was entitled to discharge under habeas 
 corpus. 
 
 A similar doctrine was announced by the Supreme Court of the 
 United States in Ex parte Lange (85 U. S. 16.3). In that case 
 the court below had imposed a fine and imprisonment, where it 
 had power only to impose a fine or imprisonment, and the fine 
 had been paid. The court held that the prisoner, having paid 
 the fine, was entitled to discharge under habeas corpus, and that 
 the judgment of the court below, that is, the fine, having been 
 executed so as to be a full satisfaction of one of the alternative 
 
-02 Decisions Relating to 
 
 penalties of the law, the iJOwer ot that com-t as to that olleiise 
 ■was at an end. 
 
 In the present proccedinj^ the judgniciit (ir the sentence ot fine. 
 as shown by the record, was pursued to its end tjy the entry of 
 the judgment against the defendant therein and the issuance of 
 an execution lor the collection tliercot. Under these circum- 
 stances, the defendant was not held or detained by virtue of the 
 judgment or decree of any competent tribunal, in which case 
 the writ of habeas corpus would not lie. 
 
 Since the foregoing was written, an opinion has been publisheil 
 in the case of People ex rel. Bedell v. Kinnei/ (24 App. Div. '-Ml'.)}, 
 ■where a party was imprisoned under a similar sentence, and a 
 Avrit of habeas corpus was issued before the expiration of six 
 months" imprisonment. The Aitpellate T>ivision of the fourth 
 department reversed the order discharging the relator from 
 imprisonment, but only on the ground that the writ was issued 
 before the expiration of term of imprisonment, and was, there- 
 fore, premature, without referring to the question herein con- 
 sidered. Mr. .Justice AA'ard, howe\'er, wrote a dissenting opinion, 
 in which he discussed the question involved in the foregoing 
 opinion and arrived at a conclusion similar to my own. 
 
 The order of the Special Term should be affirmed. 
 
 All concurred. 
 
 Order discharging relator affirmed. 
 
 Supreme Court, Erie Special Term, March, 1898. Reported 23 Misc. 63. 
 
 The People ex rel. Richard W. Larkin, Relator, v. Carlos A. 
 Hull, as County Clerk of Oenesee County, Respondent. 
 
 Liquor Tax Law— A special agent subpoenaed by a district attorney is 
 entitled to full witness fees. 
 
 A special agent of the state excise department, appointed under tlie 
 Liquor Tax La^w (La^ws of 1896, chap. 112), is not bound to take any part 
 in the prosecution, by a district attorney, of an alleged violation of the 
 statute; and, when duly subpoenaed to testify as a witness before the 
 grand jury as to a violation -which he has investigated, is entitled to his 
 legal fees and the court will compel the proper county clerk to certify tu 
 the days of attendance and the number of miles traveled. 
 
LiQT-oi: Tax Law 20S 
 
 ^fiiriox by the relator for a ])eremiitovy writ of mandamus. 
 J. Jl. ("ougdou, for relator. 
 Satford E. North, for respondent. 
 
 ^V^IJTE, J. The relator is a special agent in the department of 
 excise in this State, and the respondent is county clerk of Genesee 
 county. 
 
 In the discharge of his duty, the relator investigated an alleged 
 violation of the Liquor Tax Law in Genesee county, and made a 
 complaint against the alleged offender, to the district attorney 
 of that county, which complaint was presented by the district 
 attorney to a grand jury. 
 
 The district attorney subpoenaed the relator at New York city 
 to appear and testify as a witness before the grand jui'y, and 
 pursuant to the subpoena the relator traveled from New York to 
 Batavia for that purpose and testified before the grand jury. 
 His fees, as such witness, if he is entitled to any, amount to 
 •f34.30, and it is the intention of the relator to pay over to the 
 State of New York the amount of those fees if he shall receive 
 them. 
 
 The relator requested the respondent to certify to the number 
 of days he, the relator, attended before the grand jury and to the 
 number of miles he had traveled to so attend, which the respond- 
 ent refuses to do, upon the ground that the relator is not entitled 
 to charge or receive fees or mileage as a witness for attendance 
 before the grand jury, within the meaning of sections 609 and 61(> 
 of the t'ode of Criminal Procedure; the respondent's contention 
 in that behalf being that the Liquor Tax Law imposes upon the 
 relatoi*, as a sijecial agent of the excise department, the duty so 
 to attend and testify, at the expense of that department. 
 
 It is unflerstood to be the universal practice or custom jiow 
 of counties to pay witnesses for the People who are not special 
 agents in the excise department, situated as Larkin was, when 
 sub])oeuae(l Ity the district attorney of Genesc<' county, that is, 
 witnesses who come from another county and travel a consider- 
 al)le distance to attend and testify before the grand jury, fees and 
 mileage for so attending and testifying; and for the purposes of 
 this case it is assumed that that practice or custom is warranted 
 by section 616 of the Code of Criminal Procedure, and that the 
 proceeding before the grand jury is the trial of a criminal action 
 
Ii!l4 Uecjwioxs J{elati.\g to 
 
 within tlic iiu'iining of lii:it pi'ovisidii of tlic .statuli-. Xo objeo- 
 tidii to that cDiisdiK-tioii (iT it is iiuiilc by the i-e.spondeiit. 
 
 The I'efusal of the rcsjioiident, therefore, to jiive the certificate 
 a.sked for by the rehitor, he having made proof of the fact of his 
 attendance and tlie number oi' miles he traveled for that purpose 
 in the manner prescribed by law, must be justified, if at all, by 
 the Liquor Tax Law itself. 
 
 The object, sought to be attained by that law, is primarily to 
 tax and regulate the trafflc in liquors in such a manner as to 
 insure uniformity in the application and enforcement of the 
 Excise Law in place of a great diversity in those respects, which 
 prevailed liefore its enactment by reason of sympathies and preju- 
 dices which existed in diflfereut localities and which, it is gener- 
 ally conceded, many times caused acts of favoritism and injnstic(i 
 on the ]iart ol the oflicials charged with its administration. 
 
 The only jnovisions contained in the Liquor Tax Law which 
 can be said to bear upon the (picstion presented for solution here, 
 are found in sections 10, I',."), IKi, :!7, 38 and 42. 
 
 Such pro\ isions are, in substance, that special agents shall be 
 appointed hy the state commissioner, that' they shall receive a 
 salary of f L20(l a year, jiayable in monthly installments, together 
 with snch necessary exjienses as they may incur by direction of 
 the State commissioner in the perlornianre of the duties of their 
 office. 
 
 The relations between the commissioner and those agents are 
 made confidential by I lie statute, and they are required, under 
 his (liiection, to iiircstic/atr all matters relating to the collection 
 of liqu<ir taxes and penalties und(^r the act, and in relation to the 
 compliance with law by jiersons engaged in the traffic in liquors; 
 they may also investigate other matters in connection with the 
 sale of liquor, and, with certain county and municipal officers, 
 are required to notify district attorneys of \'iolations of the statute 
 which may come to their knowledge; that the offense investigated 
 by the special agent, as far as we are now interested in that ques- 
 tion, shall be iirosccuted by indictment by a grand jury of the 
 county in which the crime was committed, and all fines and costs 
 imposed and penalties recovered by civil actions are to be paid, 
 in the first instance, to the treasurer of the county where the 
 offender is jtrosecuted and convicted, or ]ienalties are collected, 
 and are then apportioned and divided between the State and 
 county as provided by the law. 
 
rvKjuoR Tax Law 295 
 
 Criminal actions are, generally speaking, local, and the 
 expenses thereof are borne by the counties where they are tried. 
 There is no provision either in the Liquor Tax Law or any other 
 statute, imposing upon special agents of the excise department 
 any duty or obligation to appear as witnesses before grand juries 
 or at all, otherwise than under and by virtue of subpoenas. In 
 that respect they are situated precisely like other witnesses and 
 are compelled to so attend and testify in the same manner. I 
 am of the opinion that, if the legislature had intended to place 
 such an obligation upon such special agents, the law would have 
 so provided. 
 
 There is an entire absence of statutory law making it a duty 
 of a special agent to take any j art in the prosecution of violations 
 of the Liquor Tax Law, after he shall have investigated the 
 matter and made a report to the district attorney. In that 
 respect the duty of a special agent is exactly the same as that 
 of other county and municipal officers, as has already been said. 
 The only officer or person competent to enforce the law by 
 criminal action is the district attorney. 
 
 The fact that the relator, by his original investigation and 
 report of the Petrie case, thereby made himself an indispensable 
 witness for the People; or that he now understands that he is 
 obliged to turn over to the ^^^tate the fees, if any, which he may 
 receive, does not seem to me to be relevant to this discussion. 
 There seems to be no basis for such an understanding, and, there- 
 fore, it is but an erroneous conception of the law. 
 
 Of course, if, as the respondent contends, the State or excise 
 department has paid the expenses of the relator in going to 
 Batavia from New York to testify, and the county is required to 
 pay the same expense to the relator, he will receive a double 
 payment of tliose expenses; but, as I construe the law, that ig 
 not the case. The expense of a witness once paid by the county 
 to the witness, should not, and, it is assumed, will not, be again 
 paid to him by the State or by the excise department. The 
 expense incurred and paid by a witness in such a case is not such 
 as section 10 of the Liquor Tax Law provides for, because it is 
 not an expense incurred by direction of the State commissioner, 
 within the meaning of that section of the statute. 
 
 The State commissioner not only does not direct or command 
 the special agent to appear and testify before the grand jury but 
 would have no right or authority to do so or to interfere in anvwav 
 
.Decisions Relating to 
 
 to i)reveiit an exact and prompt obedience to a subpoena served 
 upon a special agent in such a case. 
 
 Tlie right to a fee for attendance is given expressly by statu t<^ 
 to all. witnesses alilce Avho attend and testify before a grand jury. 
 
 In my opinion tlie writ asked for should be granted. 
 
 Writ granted. 
 
 Fourth Appellate Department, March, 1898, Reported. 27 App. Div. 527, 
 
 The People of the State of Xbw York ex rel. Edwin G. S. 
 MiLLEE, Respondent, v. Henky H. Lyman, as State Commis- 
 sioner of Excise of the State of New York, Appellant. 
 
 Liquor Tax Law — Effect of a violation of the law by one partner, after an 
 assignment of the certificate as collateral to a loan, and the issue of 
 a rebate tax certificate — 1896, chap. 112, §25, and 1897, chap. 312. 
 
 "Where a liquor tax certificate, issued to a firm and assigned as securit> 
 for a loan, is surrendered, and a rebate tax certificate is issued to the 
 assignee, a violation of the Liquor Tax Law, by one member of the firm 
 within thirty days thereafter, and before the rebate becomes due and 
 payable, deprives the assignee of the right to the rebate. 
 
 Appeal hy the dcMVudant, Henry H. Lyman, as State Commis- 
 sioner of Excise of the State of X(M\- York, from an order of the 
 Supreme Court, made at the Erie Special Term and entered in 
 the office of tlic clerk of the county of Erie on the 9tli day of 
 February, 18!»S, granting a peremptory writ of mandamus, requir- 
 ing the State commissioner of excise to issue orders for the 
 payment of |416.67 on account of the surrender of a liquor tax 
 certificate issued to the relator's assignors. 
 
 John G. Floss and Henry Stauber were partners under tlie 
 firm name of Floss & Stauber, and engaged in the business of 
 selling liquors at 359 T^'ashington street, Buffalo. April 30, 1S9T, 
 they executed an instrument to Edwin G. S. Miller wherein it is 
 recited that they had applied for a liquor tax certificate and 
 that Miller had advanced money wherewith to pay for it, and that 
 in consideration thereof they assigned to him the certificate, with 
 tlie right to collect all sums that might be due thereon upon its 
 surrender. 
 
 May 1, 1S97, a liquor tax certificate. No. 119S5, was issued to 
 
Liquor Tax Law 2i»7 
 
 Floss & Stauber, autliorizing them to sell liquors at 359 Wash- 
 ington street, Buffalo, for which they paid |500. July 1, 1897, 
 Floss & Stauber, through Miller, applied to the deputy commis- 
 sioner of excise for Erie county for leave to surrender the tax 
 certificate and have the proportionate part (five-sixths), |416.67, 
 of the amount paid for the certificate refunded, and on that day 
 he issued the duplicate receipts provided for by the 25th section 
 of the Liquor Tax Law. (Laws of 1896, chap. 112, as amended 
 by chap. 312 of the Laws of 1897.) 
 
 July 19, 1897, Henry Stauber was indicted in Erie county for 
 having, on July 11, 1897, violated the Liquor Tax Law. July 2l, 
 1897, he was arrested, and July twenty-ninth he was arraigned 
 on the indictment and pleaded not guilty. 
 
 When this proceeding was begun, December 17, 1897, Staubei- 
 had not been tried on the indictment. 
 
 Royal R. Scott, for the appellant. 
 
 Tracy C. Becker, for the respondent. 
 
 FoLLETT, J. But a single question is jiresented on this appeal. 
 In case a liquor tax certificate issued to a firm and assigned as 
 security for a loan is surrendered, and a rebate tax certificate 
 issued to the assignee, does the violation of the Liquor Tax Law 
 by one of the firm within thirty days thereafter, and before the 
 rebate becomes due and payable, deprive the assignee of the right 
 to the rebate? 
 
 Two kinds of assignments of liquor tax certificates are author- 
 ized: (1) An absolute sale of a certificate as provided for by the 
 27th section of the act, which authorizes the assignee to carry on 
 the business which his assignor was authorized to carry on, pro- 
 vided the assignee makes a new application, gives a bond, and the 
 assignment is approved by the officer who issued the tax certifi- 
 cate. (2) An assignment of a certificate as collateral security 
 {People v. Durante, 19 App. Div. 292; Niles v. Mathusa, 20 id. 
 488; Koehler & Son Co. v. Flehbe, 21 id. 210), under which the 
 assignee is not authorized to carry on the business in the place of 
 the person to whom the certificate was issued who continues to 
 carry it on in the same manner as before the assignment was 
 made. 
 
 The assignment in the case at bar is the second kind. 
 
 The right of a person under a certificate is prescribed by the 
 
2fl8 Decisions Relating to 
 
 statute under which it is issued, and whoever acquires an interest 
 therein takes it subject to the provisions of the statute, among 
 which provisions is one that if a person to whom a certificate is 
 issued, is adjudged to have violated the statute, the certificate 
 becomes null and void, and all right to surrender the same and 
 receive the rebate is lost. No exception is made in favor of an 
 assignee, who takes the certificate subject to all the restrictions 
 and conditions of the statute. 
 
 By the 25th section it is provided that in case a certificate is 
 surrendered, and a rebate tax receipt is issued, and within thirty 
 days thereafter the person to whom the tax certificate was issued 
 violates the provisions of the act, all right to the rebate is for- 
 feited ; and it is further provided by the same section that, in case 
 a prosecution is begun within thirty days, the right to the rebate 
 shall be suspended until the prosecution is determined, and if 
 decided in favor of the licensee the rebate is to be paid, but if 
 against him the right is lost. 
 
 Tt cannot, I think, be successfully contended that in case a 
 certificate is issued to a firm and one member is adjudged guilty 
 of violating the statute, the certificate remains valid in the hands 
 of the firm and it has a right to the rebate. Were this the rule, 
 one member of a firm could violate the statute at will, and so long 
 as both did not, the right of the firm to the certificate and rebate 
 would be perfect, and the object of the statute, which is to secure 
 an observance of the law, would be defeated. Such was not the 
 purpose of the statute. Violations of the law, by a member of a firm, 
 have the same effect on the certificate and upon the right to receive 
 payment on the rebate receipts as violations by all the partners; 
 and it makes no difference whether such violations are committed 
 before or within thirty days after the certificate is surrendered, 
 and the rebate receipt given. In either case, the right of the firm 
 to the rebate is gone, as is also the right of an assignee, who 
 takes his assignment with notice of all the provisions of the stat- 
 ute, and he is not protected by the fact that he has not personally 
 violated the statute. 
 
 The order is reversed, with costs, and the writ dismissed, with 
 fifty dollars costs. 
 
 All concurred. 
 
 Order reversed, with costs, and the writ dismissed, with fifty 
 dollars costs. 
 
Liquor Tax Law 299 
 
 Fourth Appellate Department, March, 1898. Reported. 27 App. Div. 561 
 
 Tn the Matter of the Petition of Frank Place, Appellant, for an 
 Order Revoking and Canceling the Liquor Tax Certificate of 
 Frank Matty, Eespondent. 
 
 Intoxicating liquor — ^A license, to sell liquor within 200 feet of a church, 
 
 issued under the Excise Law of 1892, is a personal privilege and not 
 
 assignable — Status of the assignee under that act and the Liquor 
 
 Tax Law — Connecting a building within 200 feet of a church with a 
 
 liquor saloon outside of such limit — Construction of the exemption 
 
 given to hotels in this respect — What are not hotel "bedrooms" 
 
 within the Liquor Tax Law. 
 
 Under section 43 of the Excise Law of 1892 (Chap. 401), as amended by 
 
 chapter 480 of the Laws of 1893, which amendment went Into effect the 
 
 29th day of April, 1893, providing that "no person or persons, who shall 
 
 not have been licensed prior to the passage of this act, shall hereafter be 
 
 licensed to sell strong or spirituous liquors, wines, ale and beer in any 
 
 building not used for hotel purposes, and for which a license does not 
 
 exist at the time of the. passage of this act, which shall be on the same 
 
 street or avenue and within two hundred feet of a building occupied 
 
 exclusively as a church or schoolhouse," the board of excise of a city had 
 
 no power, on March 4, 1893, to consent to the assignment of a license 
 
 expiring May 2, 1893, by the licensee of premises "not used for hotel 
 
 purposes," situate "within two hundred feet of a building occupied 
 
 exclusively as a church or schoolhouse," to a tenant of the licensee. 
 
 Semile. that the privilege created by section 43 was a purely personal 
 one. 
 
 The assignee of the license, not having been legally licensed to sell 
 liquors in the place in question on April 29, 1893, could not be sub- 
 sequently legally licensed to sell liquors at that place under said amended 
 section 43, nor under chapter 112 of the Laws of 1896. 
 
 A person holding a license, or a liquor tax certificate, for premises just 
 outside of the 200-foot limit can not, by renting an adjoining building, 
 which is within 200 feet of a church, and cutting an opening between the 
 buildings, become entitled to a license to sell liquor in the buildings so 
 united, the entrance to which is within 200 feet of the church. 
 
 The provision of subdivision 2 of section 24 of chapter 112 of the Laws 
 of 1896, declaring that the prohibition against sales of liquor within 200 
 feet of a church "shall not apply to a place which is occupied for a hotel" 
 only operates to exempt a place which was used for a hotel on March 23, 
 1896, when the act took effect, and not a place which was thereafter being 
 used as a hotel when the tax certificate was granted. 
 
 What rooms are not "bedrooms" within the requirements of sub- 
 division 2 of section 31 of chapter 112 of the Laws of 1896, defining the 
 term "hotel," as used in that act, considered. 
 
;iOI) J)i;iJISIONS lvKLATK\<; TO 
 
 Afi'KAL by the iiciitioufi-, l"i-aiik I'lacc, fi-oiii an oi-dei- of the 
 Su[ii-enio ("ourt, iiiailc at Ihc Onoudaya Special Term and entered 
 ill tlie oflice ot the elerk ol I lie coniity of Onondaiia ou the T(h 
 day of Juue, lyUT, denying the petitioner's applieation to have 
 canceled a liquor tax certificate issued to Frank Matty. 
 
 S. B. Head, for the appellant. 
 
 James Deviiic, for the respondent. 
 
 FoLLETT, J. This proceeding was begun December 23, 1896, by 
 Frank Place, special agent of the Commisisiouer <if Excise of 
 this State, to procure the re\ucation of a liquor tax certificate 
 issued Jul3' 1, 180G, to Frank flatty, authorizing him to sell 
 liquors at Nos. 301 and ;'.03, corner of South AVari-en and East 
 Fayette streets in the city of Syracuse, on the ground that 
 niatn'ial statements in his application lor such cerlificate were 
 l^ii.-ic, and that he Avas not entitled to receive and not entitled 
 to hold such certificate. An order was granted by a justice of the 
 Sii[u-enie Court re(iuiring Frank Matty to show cause why the 
 prayer of the petition should not be granted. He appeared and 
 answered, and upon the issue joined a trial was had which 
 resulted in a dismissal of the i!rocee<lings. 
 
 An entr,-ince to tiiis alleged hotel is on l^ast Fayette street, and 
 is conceded to be within two hundred feet of St. Taul's church, a 
 building occupied e.vclusively as a churcli and situate on tliat 
 street. The real eslale is owned by .loscpli Dunfee, who occupied 
 some portion of it licforc :\iarch 4, IS'.t.",. .Tune 10, 180:1, a liccn.^^e, 
 No. .'iTO, was granted pursuant to chapter 101 of the Laws of 1S02, 
 to Joseph Dunfee, the owner of the premises, to sell liquors at Xo. 
 ."t>l or No. ;'.0:!, or at both numbers, the particular number or 
 place not being identified. Whcllier it was a license to sell as 
 a storekeeper, as a druggist, or to sell spirituous and malt liquors 
 to be drank on the premises, or to sell malt liquor only to be 
 drank on the jn-eniises, docs not api)ear. This license exi)ired 
 May 2, 1S03. .March 4, isiKl, I'^rank Matty, the respondent, leased 
 of Josejih Dunfee some ]iortion of these premises, and evidently 
 the portion in which Dunfee was Ihen engaged in selling liquors. 
 May 2, IS'.!;',, a license was granted to Frank :\Iatty by the board 
 of excise, authorizing him to sell liquor on these premises for 
 one year, which license was renewed in IS'.tl and in 1805. What 
 
Lujuou Tax Law 301 
 
 kind of licenses tliese were does not appear, nor does it ajipear 
 to which street number they related. July 1, 1890, Frank ;Matty 
 opened both numbers, or a portion of them, as a hotel, and on 
 that day received from the county treasurer a tax certificate 
 authorizing him to sell liquors as a hotelkeeper. Before this date 
 no hotel had ever been kept on the premises, which were not so 
 occupied on the '21t\i day of June, 1896, when Frank Matty veri- 
 fied his application for the tax certificate. 
 
 It is contended that the county treasurer was authorized to 
 issue the liquor tax certificate of July 1, 1S9C, and that it is 
 valid on two grounds: 
 
 (1) That traffic in liquors was "lawfully carried on" at Nos. 
 301 and 303, March 23, 1S!)6, when the Liquor Tax Law took 
 effect. 
 
 (2) That Nos. 301 and 303 were "occupied for a hotel " July 1, 
 1896, when the tax certilicale was issued. 
 
 Before discussing this case the statutes bearing on it will bo 
 collated. They are as follows : 
 
 Section 43 of the Excise Law (Laws of 1S92, chap. 401), which 
 took efllect April 30, is:)2, provided; 
 
 " § 43. No person or persons, who shall not have been licensed 
 prior to the passage of this act, shall hereafter be licensed to sell 
 strong or spirituous liqnois, wine, ale and beer, in any building 
 not used for hotel jiurposes, and for which a license docs not 
 exist at the time of the passage <if this act, which shall lie on 
 the same street or avenue and withiu two hundred feet of a 
 building occupied exclusively as a church or a schoolhouse. Toe 
 measurements shall be taken lietween the ])rincipal entrances of 
 the buildings used for sncli church or school purposes and the 
 place for which an application for a license has been made." 
 
 This section \\'as amended liy chapter 480 of the Laws of 1893, 
 which took effect April 29, ISO:;, so that it ])rovided: 
 
 "§43. Xo person or ]tersons, who shall not have been licensed 
 prior to the |)assage of this act, shall hereafter be licensed to sell 
 strong or spirituous liquors, wines, ale and beer, in any building 
 not used for hotel purposes, and for which a license does not exist 
 at the time of the passage of this act, which shall be on the 
 same street or avenue and within two hundi-ed feet of a buildin,g 
 occupied exclusively as a church or schoolhouse. The measure- 
 ments shall be taken from the center of the nearest entrance of 
 the building used for such church or school purposes to the center 
 
'M2 Decisions Relating to 
 
 of the nearest entniuce of the place for which an application for 
 a license has been made; provided, however, that a board of 
 excise may, in its discretion grant permission in the manner 
 herein provided, to transfer a license from premises within the 
 limits above mentioned to other premises within said limits, but 
 at a greater distance from the principal entrance of a churcii or 
 school." 
 
 Section 2i of chapter 112 of the Laws of 1896 (the Liquor Tax 
 Law), which took effect March 23, 1S96, provided: 
 
 " § 24. Traffic in liquor shall not be permitted * * * 
 " 2. Under the provisions of subdivision one of section eleven 
 of this act, in any building, yard, booth or other place which shall 
 be on the same street or avenue and within two hundred feet of a 
 building occupied exclusively as a church or u schoolhouse; 
 the measurements to be taken from the center of the nearest 
 entrance of the building used for such church or school to the 
 center of the nearest entrance of the place in which liquor (raftic 
 is desired to be carried on; i)rovided, however, that this pro- 
 hibition shall not apply to a place which is occupied lor a hotel, 
 nor to a place in which such trallic in liquors is actually lawfully 
 carried on when this :ict takes eflect, nor to a place which at siuli 
 date is occupied, or in i)ro(ess of construction, by a corporatu'ii o;- 
 association which tiafflcs in liquors solely with the members 
 thereof, nor to a place wilhiii such limit to which a corporation 
 or association trafHcking in liquors solely with the members 
 thereof when this act takes ellect may remove; provided, how- 
 ever, such place to which such corjioration or association may so 
 remove shall be located within two hundred feet of the place in 
 which such corporation or association so traffics in liquors when 
 this act takes effect." 
 
 This section was amended by chapter ;!12 of the Laws of 1897 
 (which took effect April 20, 1897), but the amendment does not 
 relate to the case at bar, as the transactions all occurred before 
 that date. 
 
 This appeal will first be discussed on the respondent's theory 
 that Nos. 301 and 303 were both lawfully occupied for the traffic 
 in licpiors liy him and by his i)redcc(>ssor from June 10, 1892, to 
 July 1, 189(i, though the evidc nee, which will be hereinafter re- 
 ferred to, tends strongly to show that but one of these numbers 
 was so occii])icd, which one was more than 200 feet from St. 
 Paul's Church. 
 
LiQuoE Tax Law 303 
 
 Section i:> of cliaptev 401 oT the Liiws of 1S02, as amended by 
 chapter 4S() of the Imws of 1S!>;!, was constiaied in People ex rcl. 
 Cairns v. Murray (13 ilisc. Rep. 522; i-cvd., 14S N. Y. 171). In 
 that case No. TdO Third avenue, in the city of New York, had 
 been continuously used for the sale of liciuors for more than forty 
 years before A]iril G, IS!*."), under licenses granted by the board of 
 excise of that city. Thomas B. Nugent was engaged in the sale 
 of liqutn-s at that place under a saloon license, which expired 
 April G, 180.5. Prior to this date Thomas Cairns, the relator, 
 purchased of Nugent his business and license. In 1895 St. Agnes' 
 Church erected a building occupied exclusively by St. Agnes' 
 Parochial School on Third avenue and within 80 feet of the saloon, 
 April 19, 1895, Cairns applied for a license to sell liquors at 
 No. TOO, which was refused by the board of excise, on the ground 
 that the saloon was on the same street and within 200 feel of 
 the building, and that the applicant then held no license to sell 
 at that place. The board's decision was reviewed on certiorari by 
 the Su])erior Court and reversed. An appeal was taken to the 
 Court of .Vppeals, which reversed the judgment of the Superior 
 Court and affirmed the determination of the board of excise. It 
 was held by the Court of Appeals that the exception in amended 
 section 4."!, above quoted, applied only to a person who held a 
 license to sell liquors within the prescribed distance on the 29th 
 of April, 180;>, and that it did not embrace the successor of a per- 
 son who had held such a license; that the privilege created by 
 the section was purely a personal one, and that it did not apply 
 to a place within the prescribed distance of a school even though 
 the applicant held a saloon license to sell liquor in another part 
 of the city. 
 
 June 10, 1892, a license. No. 376, was granted to Joseph Dunfe- 
 to sell liquors at Nos. 301 or 303, or at both, which license expired 
 May 2, 1803. Whether the license was to sell spirituous and malt 
 liquors to be drank on the premises, or to sell malt liquors only 
 to be drank on the premises, or to be sold in small quantities, 
 but not to be drank on the premises, or whether it was a drug- 
 gist's license, does not appear. March 4, 1893, Frank Matty 
 entered into possession of one or both numbers, under a lease 
 from the owner, which he has ever since continued to occiqn 
 Whether the license granted to Joseph Dunfee June 10, 1892, was 
 transferred by him to Frank Matty with the consent of the board 
 of excise of the city of Syracuse on or about March 4, 1893, was 
 
;!04 ])i;f(sioNs Rkla'i'ixg to 
 
 a dispiilwl Tact. The rci-dids of the board of exciwc could not be 
 found and the license was not piesented, but several persons 
 testified that the license was so translcrred on or about March 4, 
 1893, and the justice who tried this proceeding so found, which 
 finding will not be disturbed by this court. 
 
 The first question presented is whether this transfer was au- 
 thorized by the statutes then in existence. Under the decision 
 of the Court of Appeals before referred to, it is apparent that the 
 board of excise had no power to grant at that date a license to 
 Frank Matty to sell liquors within 200 feet of the church. What 
 the board could not do directly it could uot accomplish indirectly. 
 It not being within the power of the board to authorize Frank 
 Matty to sell liquors at that place, by an original license issued 
 to him, it was not within its power to grant this privilege by 
 consenting to an assignment of a license to a person not author- 
 ized to receive one. He was not a person who could be licensed 
 to sell at that place. This license, which expired May 2, 1893, 
 conferred no right on Frank Matty to sell liquors at that place. 
 May 2, 1893, this illegally assigned license expired and Frank 
 Matty received a new license for the sale of liquors, at that p'ace. 
 Amended section 43, which took effect April 29, 1893, was then 
 in force. The words "licensed to sell," as construed by the 
 decision referred to, mean legal license to sell, and under the 
 amended section Frank Matty, not having been legally licensed 
 to sell liquors at that place prior to April 29, 1893, could not be 
 legally licensed to sell liquors at that place under the amended 
 section. {People e.r rel. Cairns v. Murray, supra: Matter of 
 Zinzow, 18 Misc. Eep. 6.53.) The same rule applies to the subse- 
 quent licenses alleged to have been granted in 1894 and 1895 
 under the Excise Law oC 1S02 as amended, so it follows that Nos. 
 301 and -iO^ were not a place in which the traffic in liquors was 
 actually and lawfully carried on March 23, 1896, when the Liquor 
 Tax Law took effect. This being so, the county treasurer had 
 no power to issue a tax certificate authorizing Frank Matty to 
 engage in the sale of liquors at this place as a keeper of a hotel. 
 It should be noted that under the Liquor Tax Law the prohibition 
 applies to place instead of to jiursoii. 
 
 Thus far the appeal has been discussed on the theory that the 
 licenses issued prior to the tax certificate were to sell liquor at 
 Nos. 301 and 303. Frank Matty testified that when he went into 
 possession his premises were more than 2(il) feet from St. Paul's 
 
Liquor Tax Law ~ 305 
 
 Cliiircli, and thai he aftenvards added to the premises first occu- 
 pied by him a ^2-foot store, which brought the entrance to his 
 place within 146 feet or 148 ieet of the entrance of the church. 
 He also testified that he began paying additional rent for his 
 enlarged place of business June 1, 189G, and from this evidence 
 it is inferable that prior to the date of the present tax certificate 
 he had no license to sell liquor within 200 feet of the church and 
 that no liceiise had been granted to sell liquor at both numbers — 
 301 and 303. 
 
 I think it cannot be successfully contended, under any of these 
 acts, that, in case a license existed authorizing a person to sell 
 liquor just outside of the prescribed limits, he can, by renting an 
 adjoining building within 200 feet of a church and cutting an 
 opening between them, become entitled to a license to sell liquors 
 in the buildings so united, the entrance to which is, as in this 
 case, within less than 200 feet of a church. 
 
 It is contended that July 1, 189G, Nos. 301 and 303 were occu- 
 pied for a hotel, and, therefore, the tax certificate is valid. It 
 is said that the verb " is " in the following clause, " that this 
 prohibition shall not apply to a place which is occupied for a 
 hotel," does not relate to the date when the act took effect, but 
 to the date when a certificate is issued, and that the words should 
 be interpreted to mean, "is or shall be occupied for a hotel." 
 Under this interpretation a hotel could at any time after the law 
 took effect be erected or opened within 200 feet of a school or 
 church and the keeper obtain a tax certificate. Such, I think, 
 was not the intention of the Legislature. By chapter 312 of the 
 Laws of 1897, this subdivision was amended so it now reads: 
 "That this prohibition shall not apply to a place which on the 
 twenty-third day of March, eighteen hundred and ninety-six, was 
 lawfully occupied for a hotel." 
 
 This is a legislative interpretation of the words first quoted. 
 It was not the intention of the Legislature to authorize the sale 
 of liquors at any place within 200 feet of a church which should 
 thereafter be occupied as a hotel, but simply to authorize sales 
 to be continued on premises legally occupied as a hotel or legally 
 used for the sale of liquors March 2.3, 1896, when the act took 
 effect. As before stated, it is conceded that the premises were 
 never occupied as a hotel until July 1, 1896. The provision in 
 respect to churches and schools is an exception to the o-eneral 
 policy of the act, which is not a tax law, but is a law to regulate 
 20 
 
;)()(! Di'X'isiONs Relating to 
 
 and control trattir in li<iiior. [Pcoplr e,r n'l. Hinsfrld v. Mvrrdij, 
 141) N. Y. 3G7.) 
 
 The courts have iinifoniily held that the exceptions in rc.spect 
 to churches and schools should be liberally coiisti-ued in their 
 favor and strictly against applicants for licenses within the pre- 
 scribed distance and so as to prevent the mischief aimed at by the 
 limitation. (Peoplr c.r rel. Cairns v. Murray, supra; People ex 
 re]. Clausen v. Mnrniji. 5 App. Div. 441; People ex rel. Cvnfilesco 
 V. IJj-rise Board. 7 :\Iisc. Rep. 41.5; Matter of Zinzou:, \^ id. G.o;j; 
 Pefrplr c.r rel. ^iireenei/ v. Lammerts, 18 Id. TU:.! ; affd., 14 App. I»iv. 
 
 t;L>s.:i 
 
 Again, subdivision 2 of section 31 of the Licpior Tax Law, as it 
 existed when this tax certificate was granted and before the 
 amendment of 1S!)7, defined a hotel as follows: " The term hotel 
 as used in this act shall mean a building or place which is regu- 
 larly kept open for the feeding and lodging of guests, and in 
 which there sliall be at least ten furnished bedrooms for their 
 occupancy if situate in any city, incorporated village, or within 
 two miles of the corporate limits of either; and at least six bed- 
 rooms if situate in any other place." 
 
 Prank Matty was sworn and described his hotel. He testified 
 that it had ten bedrooms, two on the second floor and eight on 
 the first floor. The two on the second floor were furnished and 
 had windows, and they seemed to be bedrooms in the ordinary 
 accepfation of the term. The eight bedrooms on the first floor 
 are described as follows: Five are seven feet and three inches 
 long and vary in width from five feet and eight inches to seven 
 feet and two inches ; two are sixteen feet and six inches long and 
 twelve feet wide; and one is nine feet and six inches long and 
 seven feet and three inches wide. In five of these bedrooms were 
 single beds and mattresses complete; the other three do not 
 appear to have been furnished. He testified that these eight 
 bedrooms were divided by board partitions one inch thick, 
 papered on both sides, which were only seven feet and one inch 
 in height; that the ceiling above these bedrooms was over nine 
 feet above the floor, and that none of these so-called bedroom 
 partitions extends within two feet of the ceiling. Four of these 
 bedrooms were lighted by windows and four were dark. These 
 rooms were not bedrooms within any fair deflnition of the word, 
 and only five of the eight bedrooms on the first floor were fur- 
 nished as such, as required by the section last quoted. This 
 
LiQi'OR Tax Law 307 
 
 building, at the time this liquor tax certificate was issued and 
 at the time of the trial of this proceeding, was not a hotel within 
 the statute, and the respondent had no right to receive or retail 
 a tax certificate authorizing him to sell liquor in that building as 
 a hotelkeeper. 
 
 Entertaining these views, it becomes unnecessary to considei* 
 whether in case a building within two hundred feet of a church, 
 which has been licensed to sell, on prescription or by the small 
 measure, not to be drank on the premises, or to sell under what 
 is known as a saloon keeper's license, can be converted into a 
 hotel and sales of liquors therein authorized to be drank on the 
 premises every day in the week under a hotelkeeper's tax certifi- 
 cate. No intimation is made on this question. 
 
 Prom the views expressed, it follows that when the Liquor Tax 
 Law took effect the sale of liquor was not legally carried on on 
 these premises, and that the county treasurer had no authority to 
 grant a certificate. 
 
 The judgment should be reversed and the liquor tax certificate 
 issued to the respondent canceled, with costs in favor of the 
 petitioner to be taxed. 
 
 Haedin, p. J., and Geeen, J., concurred. 
 
 Adajis, J. I am inclined to think that the evidence in this 
 case was sufiQcient to sustain the conclusion that the transfer 
 by Joseph Dunfee to the defendant Matty, in the month of March, 
 1893, of the license held by the former was of such a character 
 .as to confer upon the transferee the legal right to traffic in 
 liquors at the place where that business was conducted. 
 
 Upon the hearing the defendant attempted to show what steps 
 had been taken to obtain such transfer, and thereupon the 
 petitioner's counsel stated in open court that he should not 
 dispute the fact that the transfer was made at the time the 
 defendant said it was. This, I think, was equivalent to stipulat- 
 ing that the transfer was regularly made, and as it is conceded 
 that the defendant's license thus obtained was renewed each year, 
 it would seem to follow that he was actually and lawfully carry- 
 ing on the business of trafficking in liquors at his saloon on the 
 23d day of March, 1896, and had he been content to have rested 
 his right to a tax certificate upon this fact, I fail to see why he 
 would not have established that right within the provisions of 
 
.'ids I >ii;('[siij,\s liici,A'ri,\(; to 
 
 scfHoii -1 <it' llie ]ji(jii()r Tax I^aw (<'li:i|]. J1-, haws nT ix'M, as 
 aiiieiided by u\v<\[). 'M-. Laws of lSi)7j. 
 
 il seems, lioNxevei-, that llie defeudaiil; eiilerlaiiied smne doubt 
 i-es[)eeliii,u his right to maintain a saloon, llie nearest eutranre 
 to which was within less than two liundi-e(l feet of SI. l'aur>» 
 Church, and in order to obviaie this difliculty and remove tlie 
 doubt he attempted, bel'ore applyini; I'or his tax eertifieaH', to 
 convert his saloon into a hotel. Uiion the hearing before the 
 learned trial justice evidence was giveu which \\ as designed to 
 sliow tli.it he had successfnjly aeccmiplished this melamorpliosis, 
 and it was found that the defendant's place was a legal hotel; 
 that it comiilied with all the requirements of tlie law as such, 
 and that the defendant was entitled to conducl his "hotel ])ur- 
 snant to the license obtained liy him under chapter 11- of the 
 Laws of 1896." 
 
 Tins finding is, in my opinion, wholly nuAvarrauted liy the 
 nndisjinled facts of the case; upon the contrary, it is impossible 
 for me to read the evidence contained in the record without 
 reaching the conclusion that the defendant's attempt to convert 
 his saloon into a bole] was a mei-e sidilerfnge and aflerlbonglit. 
 and that if the defendant were |)erniilled by the conrls to siic- 
 c-eed in this atlemj)t, it would encourage other liquor dealers, 
 similarly situated, lo adoi)t the same conise, and consequently 
 lead to innumerable evasions of llie la\\', wliicli would ultimately 
 result in de|iiivini;- it of all force and idTicacy. 
 
 T am of llie ojtinion, therefore, that the learned trial justice 
 Mas in error in reaching the conclusion he di<l, and if so it follows 
 that the defendanl made a false slalemenf in his application for 
 a tax certificate. The order ajipealed from should conse(piently 
 be reversed and his certificate canceled. 
 
 IIaudin, r. .1., and W.vnn, J., concurred. 
 
 I leVeriiiination reversed and la.x certificile canceled, with costs. 
 
LiQLuu Tax Law 309 
 
 Fourth Appellate Department, March, 1898. Reported. 28 App. Div. 30. 
 
 Henry H. Lyjiax, as State Commissioner of Excise of the State 
 of New York, Appellant, v. The Geamercy Club and The 
 Fidelity and Deposit Company of Maryland, Respondents. 
 
 Liquor Tax Law — Venue of an action brought upon a bond given by the 
 holder of a liquor tax certificate — It may be changed for the 
 convenience of witnesses — All the defendants should join In the 
 motion — Statements of an expectation of proving the facts by cer- 
 tain witnesses are insufficient — The witnesses' occupation and 
 residence by street and number should be stated. 
 The provisions of the Liquor Tax Law (1896, chap! 112, § 18, as amended 
 by chap. 312 of 1897), providing that the State Commissioner of Excise 
 may "commence and maintain an action in any court of record, in any 
 county of the State, for the recovery of the penalty for the breach of any 
 condition of any bond," do not deprive the Supreme Court of its inherent 
 power to change the place of trial of an action brought by the State 
 Commissioner in pursuance of such authority, where the convenience of 
 witnesses requires such change. 
 
 A motion to change the place of the trial of an action tor the 
 convenience of witnesses must be made by all the defendants who defend, 
 unless some reason is shown why all do not join. 
 
 Where in such a case the moving aflBdavlts merely state that the moving 
 party expects to prove certain facts by the witnesses named, but fail to 
 state that the facts can 6e proved by the witnesses, and do not disclose 
 grounds showing that the facts can probably be established by them, the 
 moving papei's are insufficient. 
 
 The moving and opposing papers used upon such a motion should dis- 
 close the occupation and residence by street and number of every person 
 claimed to he a material witness, when such person is a resident of a city. 
 An action brought upon the bond required to be given by an applicant 
 for a liquor tax certificate is not an action "to recover a penalty or 
 forfeiture imposed by statute," within the meaning of section 983 of the 
 Code of Civil Procedure, but is one upon a contract obligation. 
 Ward, .!.. dissented. 
 
 Appeal by the plaintiff, Henry H. Lyman, as State Commis- 
 sioner of Excise of the State of Xew York, from an order of the 
 Supreme Court, made at the Monroe S])ecial Term and entered in 
 the fiftice of the clerk of the county of Ontario on the 8th day of 
 October, ]Si)T, granting the defendants' motion to chanoe the 
 place of trial from the county of Ontario to the counly of Xew 
 York, for the convenience of witnesses. 
 
310 Decisions Relating to 
 
 Roijal R. Hc'ilt and Mead c( Stranahait, for the appellant. 
 
 Frank H. Plait, for the Fidelity and Deposit Company of Mary- 
 laud, respondent. 
 
 PatricI: E. I.oftus, for the Gramerey Club, respondent. 
 
 Green, J. Jt is alleged in the complaint, in substance, that 
 the defendant, the Gramerey Club, applied to the special deputy 
 excise commissioner, at the city of Xew York, for a liquor tax 
 certificate, and paid the tax of $800; that it furnished the bond 
 in the penal sum of $l,GO(i. required l)y section 18 of the Liquor 
 Tax Law (Chap. 112, Laws of 1800), executed by the club as 
 principal, and by the Fidelity and Deposit Company of Maryland 
 as surety, and obtained the certificate to do business in Xew 
 York city. 
 
 The plaintiff further alleges in the cimplaint thirty-two sepa- 
 rate \ iolations of the Liquor Tax LaAv by the club, and concludes 
 that, liy reason of such violations, the defendants have become 
 liable for the penalty of sncli bond, and, therefore, are indebted 
 to the plaintiff in the sum of |1,600. 
 
 The defendants answered, taking issue upon the violations 
 alleged. 
 
 The idaintiff lesides in the county of Oswego and his attorney 
 in the county of Ontario. The defendant corporations have their 
 principal ofijic and place of business in the city of New York, 
 and all their witnesses, twenty in number, reside there. 
 
 t'pon motion of the defendant, the Fidelity and Deposit t'oni- 
 pany of :\Iaryland, an order was granted by the Special Term 
 changing the place of trial from the county of Ontario, the county 
 designated in the summons and complaint, to the county of New 
 York, for the convenience of witnesses. 
 
 All the alleged transactions set forth as a cause of action arose 
 in the city and county of New York, where the defendants and 
 their witnei-ses reside, and it seems to me that there is no just 
 i-easoTi for laying the venue in the county of Ontario, 300 miles 
 distant from the city of New York, and thus putting the defend- 
 ants to the expense of taking their witnesses to the county of 
 Ontario, and the witnesses to the trouble of traveling that 
 distance. 
 
 The plaintiff does not question the justice and propriety of the 
 
Liquor Tax Law 311 
 
 order, but contends that the power of the Supreme Court to 
 change the place of trial in actions on bonds given pursuant to 
 section 18 of the Liquor Tax Law is taken away by the provisions 
 of that law. 
 
 If it can be successfully maintained that the court is divested 
 of its power to change the place of trial, although " the conven- 
 ience of witnesses and the ends of Justice will be promoted by 
 the change " (Code Civ. Proc. § 987, subd. 3), it must follow thai 
 the court is also shorn of the power to change the venue, although 
 " there is reason to believe that an impartial trial cannot be had 
 in the proper county." (Subd. 2.) 
 
 The power in question is inherent in the very constitution of 
 a court, and its exercise is essential to the due and proper admin- 
 istration of its judicial functions, and is of vital importance to 
 an efficient and abiding control over judicial proceedings. As 
 long ago as 1807 it was declared that " we have an equitable 
 power over venues, and we ought so to exercise it as to promote 
 the convenience of suitors and to save expense to the parties.'' 
 {Blanning v. Downing, 2 Johns. 453.) 
 
 There is a presumption against an intention on the part of the 
 Legislature to infringe upon the province of the judicial depart- 
 ment of the government, and to divest the court of any of its 
 essential powers, or to forbid the exercise of such powers in 
 particular cases, and any construction leading to such a result 
 must be avoided if possible. Such an intention must be expressed 
 in clear and unequivocal terms. There must be express negative 
 words, or the implication must be necessary and irresistible. It 
 is supposed that the Legislature would not make so important an 
 innovation without a very explicit expression of its intention. 
 (End. Interp. Stat. §§ 151, 153, 522.) 
 
 Section 18 of the Liquor Tax Law (Chap. 112, Laws of 1896, 
 as amended by chap. 312, Laws of 1897) provides that the State 
 Commissioner of- Excise may " commence and maintain an action 
 in any court of record, in any county of the State, for the recovery 
 of the penalty for the breach of any condition of any bond, 
 or for any penalty or penalties incurred or imposed for a viola- 
 tion of the Liquor Tax Law." But it is not declared that the 
 trial must take place in the county designated by the commis- 
 sioner and nowhere else, or that the place of trial shall not be 
 changed pursuant to any provision of the Code of Civil Procedure. 
 There is no inconsistency between this provision and section 987 
 
:;12 DiocisioNS Relating to 
 
 of tlie Code, iind the vSupreme Court is not rest ruined in tlie ex- 
 ercise oi: its powers in tlie matter of reiuo\-al. Tiie authority con- 
 ferred upon the commissioner cannot operate, by construction, 
 to divest the court of its inherent power. 
 
 The case of 77^6 Pe<rplv v. Couyhtrij (.IS Hun, 2t5; atfd., 125 
 N. Y. 723), upon the opinion of Lbauned, J., and reported in 33 
 New Yorii State Reporter, 20r,, is an authority against plaintiff's 
 
 contention. 
 
 Since the Legislature has not attempted to deprive the Supreme 
 < 'ourt of one of its necessary judicial functions, the constitution- 
 ality of such a le-islative act is not involved in this appeal. 
 
 \Ve, therefore, do not doubt the power of the court to change 
 the place of trial to the city and county of New York, or to an 
 adjoinint; county (Liquor Tax Law, §§ 18, 42.) By the latter 
 section, Avhich, however, relates to actions to recover penalties 
 brought against persons trafficking in liquor contrary to the pro- 
 visions of the act, the power of the court to change the place of 
 trial to the county wherein the defendant resides, or to an adjoin- 
 ing county, is expressly given, and we do not think the Legisla- 
 ture intended to establish a diflferent rule in respect to actions 
 brought under section 18 to recover the penalty of the bond. We 
 see no reason for believing that the Legislature intended to im- 
 pose greater hardships on the sureties on bonds than on the 
 principal charged with willful violations of the act. 
 
 However, there are inherent and fatal defects in the papefs on 
 which the motion was made which do not fall within the class of 
 what is known as preliminary objections. 
 
 The defendants answered separately by diflferent attorneys. 
 The defenses of both defendants are substantially the same, con- 
 sisting in a denial of the violation of the condition of the bond. 
 The Fidelity and Deposit Company of Maryland moved to change 
 the place of trial from the county of Ontario to the county of 
 New York, or to the county of Kings, for the convenience of 
 witnesses. The Gramercy Club did not join in the motion. In 
 the order granting the motion it is recited that, on the motion 
 of the attorneys for the Fidelity and Deposit Comiiauy of Jlary- 
 land, the place of trial is changed. No reason is given why both 
 defendants did not join in the motion, nor does it appear that 
 notice of the motion was serxed on the attorneys for the Gram- 
 ercy Club.. The rule is that a motion to change the place of a 
 trial of an action for the convenience of witnesses must be made 
 
Lkiuor Tax Laav 313 
 
 by all the delendauts who defend, unless some reason is shown 
 why all did not join. (Huilly v. Hutton, 6 Wend. 508; Legg v. 
 Dorsluiiii. lit id. 700; Brittan v. Peabodij, 4 Hill, 62, n.; Welling 
 V. NH-trf, 1 How. Pr. 156.) 
 
 In the attidavits stating the names of the witnesses who will be 
 convenienced by a change of the place of trial, it is simply stated 
 that the nioviug defendant expects to prove certain facts by the 
 witnesses named, but it is nowhere stated that those facts can 
 be proved by those witnesses, nor do the affidavits disclose grounds 
 showing that the facts can probably be established by the persons 
 designated, and it is insufficient. {Tlinrfjdl v. WUhcrhee. 70 
 Hun, 401; McPhail v. lUdout, 83 id. 446; White v. Hall, 8 Api>. 
 Div. 618 ; S. ( '., 40 N. Y. Su])p. !»45. See Hayes v. Garsoii, 25 App. 
 Div. 115.) 
 
 Some twenty ]»ei-sous are named in the moving papei-s as neces- 
 sary and material witnesses for the moving defendant, and the 
 only means of identification given are their names and the state- 
 ment that they reside in the city of New York. Neither their 
 occiip;ition nor the street nor number of the street is given; this 
 we think is insufficient. The moving and (»i)p()wing papers used 
 ui^ou such an application should disclose the occupation and the 
 residence by street and number of every person so designated 
 as a material witness when such person is a resident of a city. 
 Otherwise, the opposing party might be unable to ascertain 
 whether such persons were in existenc(\ or to otherwise verify 
 the allegations respecting the necessity of calling them as wit- 
 nesses at the trial. 
 
 It is stated in the complaint that the bond on which the action 
 is brought is annexed to and forms a part of the complaint, and 
 in the answer of the Fidelity ;uid Deposit Company of Maryland 
 the bond on which the action is brought is referred to as being- 
 annexed to the complaint, but the bond is not printed in the 
 record, which is defective. Whether the bond contains any 
 provision in resiiect to the venue or place of trial of an action 
 to be brought thereon does not appear. 
 
 As the question of the character of this action was raised and 
 argued vtiHm 1his motion, I deem it proper to say in conclnsion 
 that this is not an action " to recover a jienalty or forfeiture 
 imposed by statute." (Code, § !tS:>.) The action is upon ;i 
 contract obligation to r(H.-o\er Hie penalty imposed or iissumed 
 
ol4 Decisions Relating to 
 
 bv the instrument, and not (o lecover a penalty imposed by 
 statute, witliin the intent and nicaniui;' ol' the provision quoted. 
 
 The order should be reversed, with ten dollars costs and dis 
 biuseiiients, and the motion denied, with tc'u dollars costs, with- 
 out prejudice to the right of the defendants to make a new 
 motion. 
 
 All concurred, except ^^^VED, J., dissenting. 
 
 Ward, J. (dissenting) : The record discloses that the only 
 question raised and considered at the Special Term was whether 
 the court I'.ad power to change the place of trial in this action 
 from the cduuly ul' Ontario to the county of New York, the 
 claim of the plaintiff there and appellant here being that the 
 Supreme Court had im itower to make the change, as the " Raines 
 Law " had provided that the State Commissioner of Excise coulrt 
 commence an action in any court of record in any comity of the 
 State ioY the recovery of the penalty for the breach of the 
 condition (if any bond given under the jirovisions of this law, 
 and that is the only (luestion ]iresented to us upon tliis appeal. 
 The objection was not taken, either in the court below or here, 
 that the defendant " The Crameicy Club " had not joined in the 
 motion to change the place of trial, or that the affidavits upoh 
 which the motion was granted were defective in any respects 
 as to the materiality or residence of witnesses, or any other 
 irregularity claimed. 
 
 I concur in the opinion of the majority of the court as to the 
 power of the court to change the place of trial, but I do not 
 concur in the result reached that the order should be reversed 
 because of the irregularities point<'d out in the opinion. 
 
 The olijection that the Gramercy Club had not formally joined 
 in the motion is wholly without merit; the motion was made 
 upon the pleadings which consisted of the complaint and the 
 answers of both of the defendants and affidavits made in behalf 
 of both of the defendants, the seci-etary of the Gramercy Club 
 making the principal affidavit as to the witnesses, and the 
 counsel for the Gramercy Club a]ipeared upon this appeal with 
 a brief urging in behalf of that defendant that the order be 
 affirmed so that the technical objection here considered, had it 
 been made at the Sjiecial Term or here, could have been cured 
 by the appearance of the " Gramercy Club "' upon this appeal. 
 
LiQi OR Tax Law 315 
 
 Nor can I see auy need ol' reversing this ordei- because ol' the 
 criticism made in the opinion of a majority of the court as to the 
 afi&daviL in regard to the witnesses. It is true that the affidavits 
 do not state that the facts expected to be proved could be proved 
 by the witnesses, but it is conceded iu the opinion, and it appears 
 from the pleadings, that the witnesses do not reside in the 
 county of Ontario, but necessarily reside, and their residences 
 are fixed in the affidavits, in the city of New York, and in vie\. 
 of these concessions, and in view of the fact that the objection 
 here raised was not taken either at the Special Term nor upon 
 this appeal, I do not think we should be astute to discover objec- 
 tions of this character when we can see from the whole case and 
 the papeis that the change should be made for the convenience of 
 witnesses. 
 
 I think the order should be affirmed, with costs. 
 
 Order reversed, with ten dollars costs and disbui-sements, and 
 motion denied, with ten dollars costs, without prejudice to the 
 right to renew upon fresh papers. 
 
 Fourth Appellate Department, March, 1898. Reported. 28 App. Div. 623. 
 
 Henry H. Lyman, as State Commissioner of Excise of the State 
 of New York, Respondent, v. George C. Corey, Appellant. 
 
 Order affirmed with ten dollars costs and disbursements, with- 
 out prejudice to a new motion to change the place of trial to 
 any county. Held, that the moving affidavits are defective in 
 that they fail to state the residence and address of the witnesses ; 
 also fail to state that the witnesses will testify to the facts alleged 
 to be material to the defense. ( See Tuska v. Wood, 81 Hun, 79 ; 
 Hayes v. Garson, 25 App. Div. 116; also Li/man as Commtssioner 
 V. Gramercy Gluh, 28 id. 30.) 
 
 All concur, except Ward, J., not voting. 
 
Drocisioxs Relatixu to 
 
 Supreme Court, Kings Special Term, iVlarch, 1898. Reported 24 Misc. 94. 
 
 Thu People of tub S-i'ate uv New Youiv, l'l;iintilV, v. Eumunh 
 \\'()i,Fj Defendant. 
 
 Violations of the Liquor Tax Law in the Greater New York— Jury trial— 
 IVlisdemeanor. 
 A person, charged with the misdemeanor of violating the Liquor Tax 
 Law (Laws of 189(J, chap. 112), in the borough of Brooklyn, is not entitled 
 to a trial by jury, but may legally be tried at a Court of Special Sessions 
 held by three magistrates. 
 
 The defendant, a salooii-keejier, was arrL'stcd and brought 
 before a police ma.uisirale in the boroui^h of livodklyn, charged 
 with a misdemeanor in illegal sales of liquor in viohition of 
 tlie Liquor Tax Law. Laws ISDG, thai). 112, § :'A. The magis- 
 trate held the defendant for trial at the Second Division of the 
 (,!ourt of Special Sessions, in the city of New York. The 
 delendaut now applies lo a justice of the Supreme (\»urt to order 
 the cause removed to the grand jury of Kings county, there to 
 be prosecuted by indictment, basing his application upon the 
 ground that, under seetion 2 of article I of the Constitution, he 
 was entitled to be tried by a jury as a matter of right. It was 
 urged, in opposition to the application, that by the amendment 
 to the Constitution, adopted in 1S70 (section 20 (if article VI, 
 now section 2;i of article VI), ("ourls of Special Sessions were 
 given such jurisdiction in the cases of misdemeanors as the 
 legislature might jirovide ; that the people adopted this amendment 
 to overcome the effect of the decisions of the Court of Appeals 
 (Wynehamer v. I'e(i|ile, L! N. Y. ;!7,^ ; Hill r. Teople, 20 id. 303), 
 which held that misdemeanors were triable by jury, as matter 
 of right; and that llii' legislature, in the new charter, having 
 given exclusive jurisdiction, without jury trials, to these courts 
 to hear and determine charges of misdenieau(U' committed in 
 said city, the act was within the legislative power under article 
 VI, section 23 of the Constitution, as interpreted in the cases of 
 People ex rel. Comaford r. Dutcher, 83 N. Y. 210 ; People ex rel 
 Stetzer v. Rawson, 61 P.arli, G19; Devine v. Peo])le, 20 Hun, OS. 
 
 Alfred C. Cowen, for motion. 
 
 Isaac M. Kai)i)er, assistant district attorney, o|i]i(wed. 
 
Liquor Tax Law' :>17 
 
 Dickey, J. Since the Constitntion -was aiiieuded in 1870, pro 
 viding that Courts of Special Sessions shall have jurisdiction of 
 the offenses of the grade of misdemeanor, as may be provided bv 
 law, it has been held in Teople ex rel Comaford v. Dutcher. s:' 
 N. Y. 240, that when the Constitution conferred authority upon 
 Courts of Special Sessions to try misdemeanors, it meant the 
 courts in question as they were and might be constituted bv 
 the legislature, whether they authorized a jury of six or otlwr 
 tvisc. In this case the legislature has provided otherwise In- 
 Special Sessions of three magistrates. It was also held in rcojilc 
 ex rel. Murray v. Justices, 74 N. Y. 406, that the constitutional 
 provision, giving a party a right of trial by jury, does not apply 
 to petty offenses triable before a Court of Special Sessions. J 
 think all this class of cases, violations of the excise laws, should 
 be speedily tried before the Special Sessions, and should not be 
 removed. The grand jury has plenty of work now, and should 
 not be further burdened. 
 
 ]\rotion for certificate of removal denied. 
 
 Supreme Court, New York Special Term, February, 1898. Reported 
 
 50 N. Y. Supp. 909, 
 
 People ex rel. Belden C'lub r. George Hilliaed, as Special 
 Deputy Commissioner of Excise. 
 
 Cohen, J. Under what is known as the Liquor Tax Law of 
 1896, as amended by chapter 312 of the Laws of 1897, the relator 
 asks for a peremptory writ of mandamus requiring the Special 
 Deputy Commissioner of Excise to issue a liquor tax certificate 
 It is conceded by the respondent that the forms of law have 
 been complied with, and that the certificate does not show ow 
 its face that the applicant is prohibited from trafficking in liquot- 
 at the place where the trafflc is to be carried on. The allegations 
 which the commissioner presents do not give him any discretioa 
 under the statutes and he must grant the certificate. Should the 
 suspicions which the opposing affidavits foreshadow prove well 
 founded, speedy and effective methods are provided by the law 
 for the cancellation of the certificate. 
 
318 Decisions Relating to 
 
 First Appellate Department, April, 1898. Reported. 28 App. Div. 127. 
 
 In the Matter of the Application of Henry II. J.,yman for an 
 Order Revoking and ('aiuclin.i,- Liquor Tax Cortiflcate No. 1980, 
 Granted to The Young .Men's Cosmopolitan Club oT Xew 
 York. 
 
 Henry H. Lyman, Ap|)('llant; The Yocng .Men's Cosmopolitan 
 Club of Now York, Respondent. 
 
 Liquor Tax Law — The burden of proof rests upon the licensee of bringing 
 
 himself within the exception as to sales of liquor on Sundays and 
 
 after one o'clock A. M. — An incorporated club may lose its rights by 
 
 changing its manner of business — Right of the court to examine the 
 
 whole case in determining the question. 
 
 Upon an application by tho State Commissioner of Excise to revoke a. 
 
 liquor tax cortiflcate upon the ground that the licensee sold liquor on 
 
 Sundays and betwi'on one o'clock and Ave o'clock in the morning on week 
 
 days in violation of section 31 of the Liquor Tax Law (Chap. 112 of 1896, 
 
 as amended by chap. 312 of IM'T), the burden rests upon the licensee of 
 
 proving that it is a corporation or association organized in good faith 
 
 under any law which, prior to May 6, 1895, provided for the organization 
 
 of societies or clubs for social, recreative or similar purposes, and that 
 
 such corporation or association was actually lawfully organized and, it a 
 
 corporation, that its certificate of incorporation was duly filed prior to 
 
 March 2'.',, 1S96, and that it at such date trafficked in or distributed liquors 
 
 among the members thereof, and is thus excepted by section 31 from the 
 
 clauses nt that section forbidding such sales. 
 
 A corporation which, having been duly organized in good faith 
 originally for social, recreative and similar purposes, acquired a right 
 under the statute to sell liquor to its members on Sundays, or at any hour 
 on any other day, forfeits such right where it so changes the purpose of 
 its organization or its manner of conducting its affairs that It becomes a 
 mere establishment for the sale of liquors to any person who may choose 
 to buy them. 
 
 The court, in determining whether this right exists in the corporation, 
 is not concluded by the fact of the club's organization, but may examine 
 into the whole case for the purpose of determining the question. 
 
 Ai'peal by the petitioner, ITenrv H. Lyiiiaii, from an order of 
 the Siipiriiie Court, made a1 tlic New York' Special Term and 
 entered in the office of the clerk of the conn! y of Now Y^ork on the 
 13th day of Decomber, 18!»7, denying; I lie petitioner's application 
 for the revocation and cancellation of Ihe liquor tax certificate 
 granted to the Young Men's Cosmopolilaii Club of New York. 
 
LiQuou Tax Law 319 
 
 Royal R. tScott, I'or the appellant. 
 
 William H. Kloikv, for the respondent. 
 
 EujisEY, J. On the 26th of April, 1897, there was presented 
 to the Special Deputy Commissioner of Excise for the county of 
 New York an application of the Young Men's Cosmopolitan Club 
 of Xew York, by Charles Smith, its president, for a liquor tax 
 certilirate uuder the provisions of the Liquor Tax Law (Chap. 112, 
 Laws of 1896). Upon that application, which was in proper 
 form, a liquor tax certificate was granted. On the 4th of June, 
 1897, a petition was presented to this court by Mr. Lyman, the 
 State Commissioner of Excise, asking for an order revoking 
 and canceling the certificate which had been granted to this 
 club. The application was made pursuant to the provisions of 
 section 28 of the Liquor Tax Law as it was amended by chapter 
 312 of the Laws of 1897. An order to show cause was granted, 
 and, upon the return of that order, the court made an order 
 of reference to take proof of the facts and report the evidence 
 to the court. Upon the coming in of the referee's report a 
 further hearing was had, which resulted in an order denying the 
 petition, and from that order this appeal is taken. The grounds 
 upon which the application to revoke the certificate was made 
 were that the respondent was violating the Liquor Tax Law by 
 selling intoxicating liquors on Sunday and on week days between 
 one o'clock and five o'clock in the morning, which is forbidden 
 by section 31 of the act. (Chap. 312 of the Laws of 1897.) That 
 the sales were made at such times was not denied; but the 
 respondent claimed that it was within one of the exceptions of 
 the statute, and that for that reason it was authorized to make 
 such sales. As they were undoubtedly illegal unless the respon- 
 dent brought itself within an exception of the statiite, the burden 
 of so doing was upon it. (Black Intox. Liq. §511.) By way 
 of supporting that burden, the respondent asserted and attempted 
 to prove that it was a club which had been organized in good 
 faith before May 6, 1895, and whose certificate of organization 
 was tiled before March 23, 1896; and for that reason it claimed 
 that it was within the exception (§31 of the statute), by which 
 it is provided that a corporation or association organized in 
 good faith under any law which, before May 6, 1895, provided 
 for the organization of societies or clubs for social, recreative 
 or similar purposes and which corporation or association 
 
320 Decisions Relating to 
 
 was actually lawfully organized, and, if a corporation, its certifi- 
 cate of incorporation duly filed before March 23, 1896, and which 
 at such date tralHcked iu or distributed liquors among the mem- 
 bers thereof, is excepted from the provisions of those clauses of 
 the section which forbids sales by the holder of the certificate on 
 Sunday or between one o'clock or five o'clock in the morning of 
 any other day. It was assumed by the court below that the evi- 
 dence established that this club Avas actually organized in good 
 faith under some law pi-o\iding for the organization of clubs for 
 social, recreative or similar purposes before May 6, lS9-"i. The 
 evidence upon that subject -was simply that an association, calling 
 itself the Young Men's Cosmopolitan Club of the eighth Assembly 
 district of New York, had been formed several years before; that 
 it A\ as unincorporated ; had no written by-laws, but that it had 
 st)me sort of a practice by which members A^ere admitted — that 
 practice being that one desiring admission made an application 
 to a committee of three, who considered the application for five 
 or ten minutes and if they report(>d favorably, admitted the 
 applicant, and if not, rejected him. It appeared that no action 
 of the club was eier taken upon the application of any person 
 for niembersliip. The testinuuiy was that the objects of the club 
 were partly political and partly social, but the witness, although 
 being somewhat dovditful upon all those points, was perfectly 
 clear that I'rom the beginning of the organization of the unin- 
 cor]iorated association it liad as a ])art of its business sold liquor 
 to its memb(-rs. Upon that point there was no doubt in his mind, 
 or hesitation in his answers. It appeared further that this asso- 
 ciation was uniucorporated until the 15th of June, 1S0.5, at which 
 time articles of incorporation were filed and the club was re- 
 moved to its present location. Without deciding that these facts 
 established that this corporation Avas a club duly organized for 
 social, recreative or similar purposes, we shall assume that that 
 is the case (as was assumed in the court below), and shall con- 
 sider here only the question on which this case must ultimately 
 turn, viz., whether a corporation organized in good faith origin- 
 ally for social, recreative or similar purposes, and which by virtue 
 of that organization has acquired a right under the statute to sell 
 intoxicating liquors to its members on Sundays or at any hour 
 of any other diiy, is liable to lose that right by a change in the 
 purjioses (if the organization oi- in the manner of conducting its 
 affairs. 
 
LiQuoE Tax Law 321 
 
 For a long time there had been not only in this State, but in 
 almost e\ery State of the Union, a serious question whether 
 clubs were amenable to the laws which prohibited the sale of 
 liquor without a license. The final conclusion in this State as 
 established by the Court of Appeals in the case of The People v. 
 The Adelphi Club (149 K. Y. 5) was that such clubs organized 
 and carried on in good faith for social, recreative or similar legi- 
 timate purposes, to which the furnishing of liquors to its members 
 is merely incidental, and having a limited and selected member- 
 ship, were not within the statute, and were not required to take 
 out a license for the sale of intoxicating liquors. The question 
 had previously been mooted in the case of The People v. Andrews 
 (50 Hun, 592), in which it was held by the General Tei'm of the 
 fifth department that if a club was fraudulently organized for 
 the purpose of evading the excise laws, it would constitute no 
 defense, but the question of fraud was one for the jury. The 
 judgment in that case, however, was reversed by the Court of 
 Appeals. {People v. Andrews, 115 N. Y. 427). The steward 
 of an alleged club had been indicted for selling liquors to persons 
 who were not members of the club. The position taken by the 
 defendant in the Court of Sessions, where the indictment was 
 tried and the conviction had, was that the club was a hona fide 
 club, duly organized for social purposes, and, therefore, not within 
 the act, and not required to take out a license. This contention 
 of the defendant was overruled by that court, which held that 
 the organization was within the act, and the sale of liquors by 
 the steward was a violation of the statute. The General Term, 
 upon appeal, reversed this conviction, holding that the question 
 whether the club was organized under the act or whether it was 
 organized for the purpose of evading the act, was a question 
 for the jury, and should have been submitted to it. Upon appeal 
 to the Court of Appeals, it was held that the transaction which 
 was charged as a violation of the Excise Law was a violation of 
 the law, and the judgment of the Court of Sessions was affirmed; 
 but this ruling was not put upon the ground that the sale of 
 liquors by a social club to a member, or to persons not members, 
 upon the request of a member, was a violation of the Excise Law, 
 but upon the ground that, as a matter of law, the scheme was 
 a fraudulent one to avoid the provisions of the Liquor Law, and 
 for that reason the sales were illegal. {People v. Adelphi Clul), 
 149 N. Y. 10, 11.) This is, therefore, an authority for the prop- 
 21 
 
Decisio.xh Rki.atino to 
 
 osition that whatever may be the alleged purpose of an (ji-j^aniza- 
 tioD the court is at liberty to examiue into all the faets, and con- 
 cluiie from thosi' facts whether the particular organization is or 
 is not within the provisions of the Excise Law. 
 
 The object of the statute is to control the sale of intoxicating 
 liquors in the interest of good order. To that end it has been 
 thought necessary, in acct)rdauce with the judgment of the great 
 body of the community, that miscellaneous sales to everybody of 
 intoxicating liquors should not be permitted <m Hunday, and that 
 there should be certain hours of other days during which no sales 
 should be made. But the law, under certain circumstances, has 
 permitted certain people to distribute liquors during the other- 
 wise prohibited hours. The object of this exception to the statute 
 is quite clear. There uiv in every city, and in many of the larger 
 villai;es of the State, organizations for social purposes, composed 
 of members chosen according to some rule, who have a house or 
 rooms to which they resort, and in which no persons are per- 
 mitted, except members or guests of members, who are invited 
 according to fixed rules, and who, to a certain extent, use these 
 places as their homes, where they go to meet their friends, to 
 pass their time, and in many instances, where they board and 
 sometimes sleep. So far as these organizations are formed for 
 social i)nrposes or for recreation, or for other purposes for which 
 men iwc accusto'ned to come together, and so far as the furnishing 
 of drink is incidental to their organization, to the same extent 
 as the furnishing of meals or newspapers or such other conven- 
 iences as a man is accustomed to have in his home, the statute 
 permits it to be done at all times. If it appears that a club is 
 lawfully organized under the provisions of section 31, which has 
 been referred to above, and that liquors are furnished under those 
 limitations to persons who are members of the organization, or to 
 the invited guests of members under such limitations as the 
 organization has prescribed, it is undoubtedly entitled to insist 
 upon its right to be within the exception in the statute. But the 
 Legislature in creating the exception had in view the particular 
 object for which these societies were organized. They must have 
 been, as the statute expressly provides, organized for social, 
 r(!creative or similar purposes, as to which the supplying of 
 meals and licpmis wiis incidental merely. The statute was not 
 intended to apply to an organization, the sole object of which 
 was to supply liquors to its members for the purpose of evading 
 
Liquor Tax Law 323 
 
 the provisions of the Liquor Tax Law. So much must be 
 acknowledged by everybody. The question here, however, is not 
 whether this club, so-called, was originally within the exceptions 
 of the Liquor Tax Law ; but, conceding that it was within them 
 in the beginning, has it so conducted its business that there is 
 no difference between its acts and those of a common seller of 
 intoxicating liquors who keeps a bar where liquor is sold to any 
 person who comes with money enough to pay for it, and, if it 
 has so conducted its business, does it thereby lose its right to 
 insist upon the exception which it acquired by the fact of its 
 organization ? 
 
 The manner of conducting the business of this club is not in 
 dispute. Although it appears that it was organized some years 
 before, there is no very definite statement as to its manner of 
 carrying on business until its articles of incorporation were filed 
 in June, 1895. Soon after they were filed the place of business 
 was transferred from 64 Essex street, where it had been in thr: 
 habit of meeting, to 518 Sixth avenue, where its rooms now ai'e. 
 The i>riS('nt roouis are over the liquor saloon of Charles Smith, 
 a liquor seller. Charles Smith is the president of this club and it 
 was he who, in April, 1897, applied for the liquor tax certificate. 
 The treasurer and general manager of the club is the person 
 in charge of the liquor saloon below its rooms. The money 
 received for the liquors which are sold in the club are in charge 
 of the general manager, who gives it to the treasurer when the 
 treasurer asks for it. The liquors of the club, so far as it 
 has any, seem to be kept in connection with the liquors of 
 the saloon, and they are furnished by the persons who supply the 
 customers in the sa],oon. It appears, and is not disputed, that a 
 membership in the club is acquired, when it is acquired at all, by 
 the purchase of a ticket from a person whose post is in the saloon 
 near the entrance to the stairway which leads up to the rooms 
 of the club. This ticket is sold for twenty-five cents to any- 
 body who asks for it, and it seems fairly to be inferred from the 
 evidence that no questions are asked of the persons who apply for 
 a ticket, but they are sold to any one who desires to buy them, 
 and there is no investigation, discrimination or selection as to the 
 membership. It appeared, too, without dispute, that member- 
 ship tickets were not necessary to obtain an entry into the club, 
 or the right to buy liquors there. Several witnesses testified 
 without contradiction that they went into the club without any 
 
324 l)iocisioxs Relating to 
 
 questions being asked of them, passing by the man at the door; 
 that they were not membeis and had never been there before, 
 but they went to the club and sat down iit the tables placed there 
 for that purpose and were served with liquor in the same way as 
 any person might have been in any other saloon. Not only were 
 men served tliere, but women also; and it appears without dis- 
 pute that during late hours of the night and down into very early 
 hours of the morning the place was occupied by men and women 
 sitting at the tables and drinking together as in any other place 
 of a similar nature where liquors are sold freely to all persons. 
 T'he plaee was fitted up for the sale of liquors like any other 
 saloon. There were no indicia that it was used for any other 
 purpose than the sale of liquors, and although the certificate of 
 incdrpuration was put in evidence there was no claim that the 
 organization had any other purpose than the sale of liquors. Th<3 
 case is a bald one. It presents clearly and fully the question 
 indicated before whether a place of this kind is brought within 
 the exception of the Liipior Tax Law simply because the certifi- 
 cate is issued to a body incorporated in good faith under the law 
 for the organization of social clubs. Upon the facts shown it 
 is quite clear tliat the only object for which this place is main- 
 tained is the sale of liquors to any persons who choose to come 
 there and buy them, and it has no other reason for existing. It 
 is clearly a device to evade the law. If a club is organized for 
 social or recreative purposes, having a membership which is 
 chosen in accordance with some rule, or after some investigation 
 with regard to the applicant, and some means are taken to 
 ascertain whether his membership is agreeable to the other mem- 
 bers of the club, and it appears that the selling of liquors is 
 merely incidental to the other objects for which the club is organ- 
 ized, it may well be held to be within the exceptions of the statute, 
 although liquors are sold, not only to its members, but to other 
 persons who, according to some rule of the club, are introduced 
 within its precincts as invited guests. Where it appears that the 
 club has no other reason for its existence than the sale of liquors 
 to any person who chooses to become a member by paying a small 
 sum ; that there is no selection of its members, but that any per- 
 son is eligible; that persons who are not members are permitted 
 to buy liquors in the club; that women are also permitted, with 
 or without membership tickets, to jmrchase liquors and drink 
 them there, so that it is quite clear that the whole scheme is 
 
LiQuoE Tax Law 325 
 
 one to evade the statute, the fact that a lawfully organized cor- 
 poration carries on the business does not prevent it from being a 
 common rum-selling establishment, nor secure to it the benefit 
 of the exception. (Black Intox. Liq. § 142.) In the book just 
 cited, the authorities upon the subject are collated, and the rule 
 just above laid down is to be clearly evolved from them. (11 Am. 
 & Eng. Ency. of Law, 727.) Where it appears plainly that the 
 corporation exists solely for the purpose of carrying on an estab- 
 lishment for selling intoxicating liquors to any one who chooses 
 to buy them, the court is not bound to stop with the fact of its 
 organization, but may examine into the whole case, and if it 
 concludes that it is organized for the purpose of evading the 
 statute, it is at liberty to say so and revoke the certificate, as it 
 might revoke the certificate of any other person who sold liquors 
 illegally. For these reasons we think that the court below erred 
 in denying the motion to revoke the certificate, and its order 
 should be reversed, with ten dollars costs and disbursements, and 
 the motion to revoke the certificate granted, with twenty-five 
 dollars costs and the disbursements of the proceedings. 
 
 Van Brunt^ P. J., Patterson and McLaughlin, JJ., concurred. 
 
 Order reversed, with ten dollars costs and disbursements, and 
 motion granted, with twenty-five dollars costs and disbursements 
 
 First Appellate Department, April, 1898. Reported 28 App. Div. 140. 
 
 The People op the State op New York ex rel. Beldbn Club, 
 Kespondent, v. George Hilliard, as Special Deputy Commis- 
 sioner of Excise for the County of New York, Appellant. 
 
 The issue of a liquor tax certificate depends entirely on the application — 
 The officer issuing it has no discretionary power. 
 
 By section 19 of the Liquor Tax Law, as amended in 1897 (1896, chap. 
 112, as amended by chap. 312 of 1897), the right of an applicant to a liquor 
 tax certificate is made to depend altogether upon the statements contained 
 in his application therefor; that section leaves no discretionary power 
 with the officer empowered to issue the certificate. 
 
 Appeal by the defendant, George Hilliard, as special deputy 
 commissioner of excise for the county of New York, from an order 
 
I'.liO Decisions Relating to 
 
 of the Supreme Court, ituule ;il tlic New V(jrk Special Term and 
 entered in the office ol' the clerk o\' Ihe county of New York on 
 the 21st day of February, 1S!)S, oi-anlinj; the relator's motion for 
 a peremptory writ of mandamus i-cqnirmg 1he defendant to forth- 
 with approve of the bond filed by tlie relator with the defendant, 
 and t(i issue a liquor tax certiflcatc (o the said I'.elden Club, and, 
 also, from the writ of mandamus issued thereon. 
 
 Alfred R. Page, for the appellant. 
 
 Patrick H. Loftiis, for the respondent. 
 
 Patterson, J. The relator (lespdndent) is a club duly organ- 
 ized under the act of 1S7."), whose certilicate of incorporation 
 was approved by a justice of the Supreme Court in the year ISsii. 
 By its president, acliiit; as stated under ;i resolution of the 
 club, it applied to the special deputy commissioner of excise 
 of the county of New York, to obtain a liquor tax certificate 
 under the provisions of chaptt" 112 of the Laws of 189G, as 
 amended by chapter ;'.12 of the Laws of 1S!)7. The statement upon 
 which the application was based \A'as sullicient in form and also 
 in substance to entitle the applicant priiiid fuciv to the certificate 
 asked for. The special deputy coniniissioner of excise rejected 
 the application and refused to issue a certificate, whereupon the 
 relator applied to the Sii[irenie Court for a mandamus. In 
 answer to that application, tlie special deputy commissioner of 
 excise set up by aliida\it, in substance, that the premises 
 mentioned in the ixdalor's statement and application for a cer- 
 tificate were, and for some time had been, kept by another 
 organization called the (Iraniercy Clid), that they were in the 
 sole management and charge of one Corey, who, under the cloak 
 and cmer of a club or oroanization, used said premises as a 
 resort for lewd persons and disorderly characters; that a liquor 
 tax certificate issued to the Gramercy Club was revoked by the 
 Supreme Court; that said Corey is still in charge of the same 
 premises; that he is using the charter of the Belden Club, this 
 relator, for the same imrpose for which he used the Gramercy 
 Club charter; that the chiel' of police has protested against the 
 granting of a liquor certificate to this relator, and that he verily 
 believed that it is the intention to carry on the same unlawful 
 and disreputable business under a license to be procured by the 
 Belden Club in substitution lor the revoked license of the 
 
Liquor Tax Law 327 
 
 Gra mercy Club. The justice at Special Term granted a peremp- 
 tory mandamus to the relator, and irom the order entered thereon 
 this appeal is taken. 
 
 It is claimed by the appellant that, under subdivision !) of 
 section 2;j of the Liquor Tax Law, he had the power and discre- 
 tion to refuse the relator's application for a certificate. If the 
 terms of the act as it was originally passed in 1896 had not been 
 changed prior to the time of the relator's application for a liquor 
 certificate, there would have been no difficulty in sustaining the 
 contention of the appellant. {People ex rcl. Anderson v. Hoag, 
 n App. Div. 74.) Section 23 of the statute r(;ferred to relates 
 to persons who shall not traffic in liquors, and to whom liquor 
 certificates shall not be granted. Subdivision 8 of section 23 of 
 the original act, now subilivision 9 of the amended aci, provides 
 as follows: "No corporation, association, copartnership or 
 person, who as owner or agent carries on or permits t(i be carried 
 on, or is interested in any traffic, business or occupation, the 
 carrying on of which is a violation of law, shall traffic in liquors 
 or be granted a liquor tax certificate or be interested therein." 
 That provision, standing alone, would confer upon the special 
 deputy commissioner a clear right to determine, in the first 
 instance, whether an applicant for a liquor tax certificate came 
 within the prohibition of the law, and the facts set forth in the 
 affidavit above referred to would have justified a refusal of the 
 certificate; but section 19 of the Liquor Tax Law, which must 
 also be given effect to, in terms deprives the special deputy 
 commissioner, or any other person having the authority to issue 
 such certificate, of any right of judgment or discretion in the 
 matter. As section 19 originally read (the act of 1896) it was 
 enacted that " when the provisions of sections seventeen and 
 eighteen of this act (relating to statements to be made upon an 
 application for liquor tax certificates and bonds to be given bv 
 applicants) have been complied with, and the application pro- 
 vided for in section seventeen is found to be correct in form, and 
 the bond required by section eighteen is found to be correct as 
 to its form, and the sureties thereon areapproved as sufficient by 
 (he county treasurer, or if in a county containing a city of the 
 first class by the special deputy commissioner for such county, 
 then, upon the payment of the taxes levied under section eleven of 
 this act, the county treasurer of the county, and in a county 
 containing a city of the first class, the special deputy commi!' 
 
■ >iis Decisions Relating to 
 
 sioner for such county * * » shall at once prei>are and issue 
 to the corporation, association, copartnership or person making 
 such application and filing such bond and paying such tax, a 
 liquor tax certificate in the form provided for in this act." By 
 the amendment of 1S!)7 section 19 is made to read: " When the 
 provisions of sections seventeen and eighteen of this act have 
 been complied with, and the application provided for in section 
 seventeen is found to be correct in form, and f/or.s' not show on 
 the face thereof that the apjiUcant is prohibited from trafficklnn 
 m liquor," etc. Thus, by the express terms of the act, the right 
 of the applicant to the liquor tax certificate is made to depend 
 altogether upon the statement contained in the application, thus 
 taking away any discretion that might have resided in the officers 
 empowered to issue the certificate. This amendment is so con 
 .'^picuous and radical that it must have been inserted for some 
 real or supposed cogent reason, and it doubtless was to prevent 
 any other influence operating upon those authorized to grant 
 certificates than the statements of the applicant, made under the 
 responsibilities and subject to the penalties imposed by the 
 statute for making false representations in the statement upon 
 which the application lor a certificate was based, or for carrying 
 on unlawful business under the cover of an issued certificate. 
 The penalties imjiosed by the statute are rigorous and may be 
 readily enforced and if, as the special deputy commissioner in 
 this case seems to have reason to believe, the design of the parties 
 applying for this certificate is still to carry on, or permit to be 
 carried on, a prohibited business, it will be the duty of the 
 authorities at once to invoke the power of the court to cancel 
 the certificate and punish the offender. That course was pur- 
 sued in the case of The flraiucrcu Club, and the action of the 
 Special Term of the Supreme Court in revoking a liquor tax 
 certificate of that club has been sustained by this court in a 
 decision made at this term. (See post, p. 209). Under the 
 lirovisions of the Liquor Tax f^aw and its express command con- 
 tained in the amendment of the 19th section above cited, the court 
 below was right in directing a mandamus to issue. 
 
 The order appealed from must be affirmed, with costs. 
 
 Van Brunt, P. J., I'.AKKicrr, Rumsey and JIcLaughlin, JJ., 
 concurred. 
 
 Order affirmed, with costs. 
 
Liquor Tax Law 329 
 
 First Appellate Department, April, 1898. Reported. 28 App. Div. 209. 
 
 In the Matter of the Application of Henry H. Lyman^ for an 
 Order Revoking and Cancelling Liquor Tax Certificate No. 4079, 
 Granted to The Gramercy Club. 
 
 The Graiiercy Club^ Appellant; Henry H. Lyman, Respondent. 
 
 Liquor Tax Law — Revocation of the certificate of a club, organized to 
 evade the statute, and in which membership is dependent solely on 
 a nominal payment. 
 The Supreme Court has power to revoke and cancel a liquor tax 
 certificate issued to a club which was not organized in good faith, but 
 merely for the purpose of violating or evading the statute; it being with- 
 out by-laws, no meeting having been held after that at which it was 
 organized, its members having no interest in its property nor voice in Its 
 management, and any person being able, upon payment of a membership 
 fee of from ten to twenty-five cents, to obtain liquor there. 
 
 Appeal by The Gramercy Club, from an order of the Supreme 
 Court, made at the New York Special Term and entered in the 
 office of the clerk of the county of New York on the 21st day of 
 January, 1898, revoking and canceling the liquor tax certificate 
 issued to The Gramercy Club. 
 
 Patrick E. Loftus, for the appellant. 
 
 Royal B. Scott, for the respondent. 
 
 McLaughlin, J. This is an appeal from an order revoking and 
 cancelling a liquor tax certificate granted to the Gramercy Club, 
 upon the ground that it had forfeited its right thereto by traffick- 
 ing in liquors on Sundays and between the hours of one and five 
 o'clock in the morning; also upon the ground that it was not 
 organized in good faith and its membership was not a legitimate 
 membership, and that it had permitted its premises to be used as, 
 and the same was, a disorderly house. 
 
 The most casual consideration of the record before us cannot 
 fail to convince one that the order was right and should be 
 affirmed. This record shows that the Gramercy Club was not 
 organized, or the business thereafter conducted by it, in good 
 
•i'-W Divisions Relating to 
 
 faith so as to bring it within the provisions of the statute (Laws 
 of 1896, chap. 112, § 31, as amended by Laws of 1897, chap. 312) 
 relating to clubs. It was organized for the purpose of violating 
 the law. The charter was purchased by one Edward B. Corey, 
 and then he and two or three of his employees met in the barroom, 
 and they said " we are the Gramercy Olub." This was the origin 
 of the club, this constituted the organization, and this was the 
 only meeting held. Thereafter Corey had some tickets prepared 
 which were given to the women who frequented the place with 
 instructions to write in the names of such persons as they saw 
 fit. Any person could become a member by the payment of from 
 ten to twenty-five cents. Corey was the owner of the place; he 
 received all the money that was taken in; he was the Gramercy 
 Club. No by-laws were ever adopted and no meeting was ever 
 held after the organization. The place was frequented by a 
 large number of women for immoral purposes, to whom liquor 
 was served on Sundays and during prohibited hours. Its alleged 
 members had no interest whatever in the property; they had no 
 voice in the management of the club. Any person could obtain 
 liquor after one o'clock, a. m., or on Sundays, by joining the club, 
 and nothing was done in the place except to drink, smoke and 
 solicit for prostitution. It was not a club. It was nothing more 
 or less thrfn a fraudulent scheme or device concocted by Corey to 
 evade the law. Under snch a state of facts, which are uncon- 
 tradicted, it cannot be seriously contended that such a place is 
 a club within the intent and meaning of the statute above referred 
 to. 
 
 The order was right and should be affirmed, with costs. 
 
 Van Brunt, P. J., Rumsbt and Patterson, JJ., concurred. 
 
 Order affirmed, with costs. 
 
Liquor Tax Law 831 
 
 Supreme Court, Ulster Special Term, April, 1898. Reported. 23 Misc. 446. 
 
 Matter of an Application to Revoke and Cancel Liquor Tax Cer- 
 tificate No. 14,111, granted to Bernaed E. McCuskbr. 
 
 Liquor Tax Law — A corner building used as a saloon — Measurement of 
 200 feet from its entrance to that of a synagogue around the corner 
 — When a building is used "exclusively" as a church — Occupation 
 as a saloon, prior to March 23, 1896, shown by stipulation. 
 
 "Upon an application to revolve a liquor tax certificate, it appeared tliat 
 the saloon in question was on the corner of Division and Third streets, and 
 that a synagogue adjoined it on Third street. An entrance to the saloon 
 from Third street had never been used by the licensee; he had boarded it 
 up and had extended a portion of his bar beyond the interior opening 
 of this entrance. The center of the main entrance on Division street, 
 although around the corner, was within 200 feet of the center of the 
 nearest entrance of the synagogue, when measured in a straight line. 
 Held, that the building was within the inhibition of the statute (Laws of 
 1896, chap. 112, § 24, subd. 2, as amended by Laws of 1897, chap. 312). It 
 appeared that the basement of the synagogue was rented by its trustees 
 to five societies connected with the synagogue and largely composed of 
 its members and that the rentals were used to maintain the synagogue. 
 Held, that the synagogue was occupied "exclusively" as a church, within ' 
 the meaning of the statute. 
 
 Where the parties to such a proceeding stipulate that the premises 
 "have been regularly licensed and occupied continuously as a saloon for 
 the sale of liquor for a period of at least ten years," before April 6, 1898, 
 the premises are clearly within the statutory exemption given to a place 
 in which traffic in liquors was actually carried on, on the 23d day of 
 March, 1896. 
 
 Parties by their stipulations may make the law for any legal proceeding 
 in which they are impleaded, which not only binds them, but which the 
 courts are bound to enforce. 
 
 Applicatiox for the revocation of a liquor tax certificate. 
 George E. Sands, for petitioner. 
 
 Howard & Peck, for county treasurer of Rensselaer county. 
 Frederick A. Chew, for Bernard E. McCusker. 
 
 Clearwater, J. This is an application for the revocation of a 
 liquor tax certificate upon the grounds: 
 
 1. That the traffic is conducted in a building on the same street 
 and within two hundred feet of a church. 
 
Deci.sions Relating to 
 
 2. That the defendant made lalse statements in the application 
 for the transfer of his certificate. 
 
 The matter is submitted upon the petition, answer and the 
 testimony taken before a referee. 
 
 The defendant originally obtained a liquor tax certificate for 
 the carrying on of his business at Nos. 28 and 30 Division street 
 in the city of Troy, a building owned by his sister, who term- 
 inated his lease, and let the property to two other brothers, 
 whereupon the defendant had his certificate transferred to a 
 building upon the southwest corner of Third and Division streets 
 in that city. As originally constructed, the latter building had 
 three entrances on Division, and one on Third street. Th<; 
 entrance on Third street has never been used by the defendant, 
 is nailed up and permanently closed, and a portion of the bar 
 projects beyond the interior opening. On the adjoining lot upon 
 Third street is the Jewish Synagogue of lierith Sholom. 
 
 Chapter 112 of the Laws of 1896, prohibited tiafBc in liquor 
 in any building on the same street and within two hundred feet 
 of a building occupied exclusively as a church, the measurement 
 to be taken from the center of the nearest entrance of the churcn 
 to the center of nearest entrance of the place in which the traffic 
 was to be carried on (§ 24, sub. 2), and it has been held that a 
 'building situate upon a corner of two streets is within the 
 inhibition of the act notwithstanding it fronts on a different 
 street from the church. People ex rel. Clausen v. Murray, 5 App. 
 Div. Rep. 441 ; IMatter of Zinzow, 18 Misc. Rep. 653. 
 
 By chapter 312 of the Laws of 1897, however, the law was 
 amended so as to provide that the measurement shall be taken 
 in a straight line from the center of the nearest entrance of the 
 church to the center of the nearest entrance of the place in which 
 the traffic is to be carried on. Sec. 24, sub. 2. 
 
 It is claimed by the defendant that this means that the meas- 
 urement must be made in a line as the street runs, and if thus 
 made, the Division street entrance cannot be reached, as to 
 include it, it is necessary on reaching the corner of Third street, 
 to turn at right angles. 
 
 I do not so understand the law. A straight line is one free 
 from angularities or curvatures, and is the shortest and most 
 direct distance between two points. Thus measured all the 
 Division street entrances are within the prohibited distance. 
 
 It is also claimed by the defendant that the synagogue is not a 
 
Liquor Tax Law 333 
 
 building occupied exclusively as a churcli within the meaning on 
 the statute. 
 
 Five societies: The Independent Order of Benai Berith, The 
 Independent Order of Kesher Shel Barsel, The Free Sons of 
 Israel, The Sisterhood Benevolent Society, and The Young 
 Peoples' Association, meet in the basement and pay the trustees 
 of the synagogue a small rental, which defrays the expense of 
 light, fuel and the service of a janitor. This rent goes into the 
 treasury of the synagogue, and is used for its maintenance. 
 Membership in these societies is confined to persons of the Jewish 
 faith, and their object is the union of Israelites in promoting the 
 interests of the race, elevating the character of the Jewish people, 
 inculcating principles of philanthropy, honor and patriotism, the 
 support of science and art, alleviating the wants of the poor, 
 visiting the sick, aiding the victims of persecution and protecting 
 and assisting the widow and orphan. They are of a sectariau, 
 but not of a religious character. Ninety per cent, of their mem- 
 bers are members of the congregation of Berith Sholom and the 
 principal reason for using the basement of the temple as a place 
 of meeting, is to aid its congregation in defraying its expenses. 
 
 I do not think that this use of the basement of the synagogue 
 by these benevolent societies is at all inconsistent with its use 
 as a place of worship; nor do I think that its effect is to deprive 
 the synagogue of the protection of the act. The precise shade 
 of meaning to be given to the term "exclusively," has been so 
 recently and fully discussed in the ease of the People ex rel. 
 Young Men's Association of Albany v. Sayles, 23 Misc. Rep. I, 
 that it is unnecessary to reiterate here the views there expressed. 
 They are in accord with the authorities to which reference is 
 made in the opinion in that case, and are controlling here. 
 
 It is but proper to add, that this proceeding is not ]n"osecntei] 
 by any person connected with the synagogue, but by one Richard 
 N. Holden, who admits entertaining a feeling of bitter hostility 
 to the defendant, and whose action it is charged, is inspired in 
 part by this ill-will, and in part by the brothers of the defendant 
 who succeeded him as tenants of his sister's property. While the 
 animus of the complainant is not specially pertinent, it is entirely 
 apparent. 
 
 The act of 1897, provided, however, that the prohibition relative 
 to a church, should not apply to a place in which traffic in liquor 
 was actually carried on, on the 23d day of March, 189f). 
 
o;>4 Decisions Relating to 
 
 At the close of all the testimony before the referee, the follow 
 ing stipulation assented to by counsel for all the parties was 
 entered upon the minutes and is reported with them to the 
 court : 
 
 "April, 6, 1898. 
 
 It is admitted by the counsel for the respective parties, that 
 the premises now occupied by Bernard E. McCusker as a saloon, 
 to wit, Nos. 60 and 02 Division street, or 161 Third street, as the 
 case may be, have been regularly licensed and occupied continu- 
 ously as a saloon for the sale of liquor for a period of at least 
 ten years, without any interruption or cessation in the business 
 up to the present time and that no other business except a saloon 
 business was carried on there." 
 
 Parties by their stipulations, may in many ways make the law 
 for any legal proceeding in which thfv are impleaded, which not 
 only binds them, but which the courts are bound to enforce. 
 They may stipulate away statutory and even constitutional 
 rights. They may stipulate for shorter limitations of time for 
 bringing actions than are prescribed by statute. They may stipu 
 late that the decision of a court shall be final and thus waive the 
 right of appeal ; and all stipulations made by parties for the 
 government of their conduct, the control of their rights or for the 
 guidance of the court in the trial of a cause or the conduct of 
 litigation of any character not unreasonable or against good 
 morals or public policy will be enforced by the courts. Matter -t 
 Petition of New York, Lackawanna & Western Railroad Co.. OS 
 N. Y. 447453 ; Buel v. Trustees of Lockport, 3 id. 197 ; Embury t" . 
 Conner, id. 511; Sherman v. McKeon, 3S id. 260; Allen r. Com 
 inissioners, etc., id. 312; Vose v. Cockcroft, 44 id. 415; 
 Phyfe V. Eimer, 45 id. 102 ; De Grove v. Insurance Co., 61 id. 
 594 ; Ogdensburgh & L. C. R. R. Co. v. V. & C. R. R. Co.. 63 id. 
 176; Wilkinson v. Insurance Co., 72 id. 499 ; Baird i\ TMnyor, 74 id. 
 382 ; Hilton v. Fonda, 86 id. 339 ; Steen v. Insurance Co., 89 id. 
 315 ; Matter of Cooper, 93 id. 507 ; Stedeker v. Bernard, id. 589. 
 
 Although the statute uses the adverb " lawfully," and the 
 stipulation " regularly," it is, so far as this proceeding is con- 
 cerned, an idle waste of time and words to undertake to distin- 
 guish them in meaning. Regularly, in common English means: 
 Constituted, appointed, or conducted in the proper manner; con- 
 formable to law or custom ; duly authorized. And if as agreed 
 by all the parties to this proceeding, the premises of the 
 
Liquor Tax Law 335 
 
 defendant were regularjy tlius licensed and occupied continu 
 ousiy at least nine years prior to the passage ol tlie act ol iH'J 't, 
 they are clearly witniu the exemption. 
 
 This stipulation renders further aiscussion ol' the case useless, 
 and the application to revoke the defendant's license is denied, 
 with such costs and disbursements as are properly taxable in a 
 special proceeding. 
 
 Ordered accordingly. 
 
 Supreme Court, Queens Special Term, April, 1898. Unreported. 
 
 People v. Seaman. 
 
 Motion to remove excise case, violation of subdivision 1 of 
 section 31 of Liquor Tax Law, from Special Sessions in Queens 
 Borough, city of New York, to Grand Jury on ground that 
 sections 35 and 35-a of Liquor Tax Law require prosecution to be 
 by indictment save in the city and county of New York. 
 
 Frederick L. Gilbert, for defendant. 
 
 George W. Davison, for the People. 
 
 Maddox, J. The defendant has been held for trial in the Court 
 of Special Sessions of the City of New York, in the Borough of 
 Queens, charged with the commission of a misdemeanor, i. e., i 
 violation of subdivision 1 of section 31 of the Liquor Tax Law, 
 " within the city of New Y'ork " and he asks for an order of 
 removal to the County Court of Queens county. 
 
 By section 1406 of the Greater New York Charter, chapter 378, 
 Laws of 1897, Courts of Special Sessions of the city of Ne>A' 
 York, have, " in the first instance " exclusive jurisdiction " to 
 bear and determine all charges of misdemeanors committed 
 within the city of New York " except charges of " libel " unless 
 the jurisdiction to proceed with the hearing is divested as by 
 that section provided. 
 
 A violation of the Liquor Tax Law is declared to be a misde- 
 meanor, and the Greater New York Charter, enacted subsequent to 
 the Liquor Tax Law, by implication repeals the repugnant and 
 
836 Decisions Relating to 
 
 iiiconsistent provisions ol' sections 35 and 35-a of the Liquor Tux 
 Law, in su tar as tliey relate to trials of those charged with the 
 cuminission ol misdemeanor within the present city. 
 
 ^'o constitutional right has been infringed and defendant's 
 contention is without merit. 
 
 Motion is, therefore, denied. 
 
 Supreme Court, Onondaga County, April, 1898. Unreported. 
 
 People ex rel. Henry H. Lyman v. American Surety Company, 
 Impleaded with Thomas R. Boone. 
 
 Watson JL Rogers, Referee: This action was begun March 8, 
 1897, and is to recover upon a bond filed with the County Treas- 
 urer of Onondaga county, pursuant to section 18 of the Liquor 
 Tax Law — the holder of the liquor tax certificate having suffered 
 his premises to become disorderly, contrary to one of the condi- 
 tions of the bond. The party plaintiff is designated in the title 
 of the action '' The People of the State of New York ex rel. Henry 
 H. Lyman, State Commissioner of Excise." 
 
 The answer of the defendant American Surety Company sets 
 up a defect in the party plaintiff, that the bond was made to the 
 People of the State and not to the plaintiff; that it is not brought 
 by the county treasurer, nor by a special deputy commissioner of 
 excise ; and that the plaintiff has no capacity to sue. 
 
 The defendant's counsel insists that these defenses are all 
 good ; but the plaintitf 's counsel urges they have been waived by 
 failing to demur, (Code, §4SS; People v. Lamb, 85 Hun, 171). 
 and, without so admitting, says that if good, they are not avail- 
 able. 
 
 Certain persons as infants, idiots, lunatics, &c., cannot sue 
 except by guardians, committees, &c., and this is said to be what 
 is meant by want of capacity to sue {Baiil: of Havana v. Magce. 
 20 N. Y. 355-359). Assuming there be capacity to sue or a want 
 of it, which has been waived, nevertheless, the cause of action 
 must belong to the party prosecuting {Daris v. The Mayor, 14 
 N. Y. 506, 527 ; Mosf^elman v. Caew. \ Thompson & Cook, 171-173) ; 
 — he must be the "real party in interest" unless acting in a 
 
Liquor Tax Law 337 
 
 representative capacity (Code, § 449) ; and, ordinarily, when an 
 instrument is under seal, no person can sue or be sued to enforce 
 its covenants who is not named as a party to it. {Eenricns v. 
 Englert, 137 N. Y. 488.) 
 
 What interest has the plaintiff in this action, and where is the 
 authority to sue? 
 
 The action was begun March 8, 1897. The Liquor Tax Law 
 (Laws of 1896, Chap. 112) was then in its original form. Thi 
 plaintiflE's rights must be determined by the statute as It then 
 was. 
 
 Section 18 of the act provides that an applicant for a liquor 
 tax certificate " shall give a bond to the People of the State of 
 New York, in the penal sum of twice the amount of the tax for 
 one year, upon the kind of traffic in liquor to be carried on by 
 such applicant, where carried on, but in no case for less than 
 1500 conditioned, that if the tax certificate applied for is given, 
 the applicant or applicants will not while the business for which 
 such tax certificate is given shall be carried on * * * permit 
 such premises to become disorderly, and will not violate any of 
 the provisions of the Liquor Tax Law." 
 
 This section makes no provision for suit for a breach of the 
 conditions of the bond, nor is any disposition made of the 
 recovery that may be had for such breach. 
 
 By section 36, entitled " Collection of Pines and Penalties and 
 Forfeiture of Bonds" it is provided, that upon the conviction and 
 sentence of any party holding a liquor tax certificate for a 
 violation of the provisions of the act, the penalty for which is 
 prescribed in sections twenty-eight, twenty-nine and thirty-four 
 thereof, the court or officer imposing such sentence, or the clerK 
 of the court, if there be a clerk, shall forthwith make and file in 
 the office of the clerk of the county in which such conviction 
 shall have been had, a certified statement of such conviction and 
 sentence, and the clerk of the court shall, immediately thereupon, 
 enter a judgment in his office for the amount of the penalty or 
 fine, and costs, imposed against the party so convicted " and in 
 favor of the state commissioner of excise." Provision is then 
 made for the issue of an execution and payment of the moneys 
 collected upon the execution to the county treasurer or special 
 deputy commissioner. It further provides : " In case such judg- 
 ment debtor or debtors shall have given the bond provided for in 
 section 18 of this act, such county treasurer or special deputy 
 22 
 
■io^ Ducisio.NS Relating to 
 
 coinmissioiicr, may proceed to collect the amount of such judg- 
 ment, together with the costs ol collection Irom the sureties on 
 such bond, by due process oi' law." 
 
 Ho that under the last-mentioned section, the People cannot, 
 nor the state commissioner of excise, notwithstanding the judg- 
 ment is in his favor, prosecute the bond for collection of the 
 judgment. 
 
 If the I'eople, or State Commissioner of Excise can sue the bond 
 for breach of the conditions mentioned in section 18, and the 
 county treasurer or special deputy commissioner for the judg- 
 ment, under section 36, the same sureties may be subjected Ij 
 the annoyance of two actions by different pa -ties on the same 
 bond, and at the same time. If one should prosecute to judgment 
 and execution, would payment of the execution be such a satis- 
 faction as to diminish, or wholly defeat the recovery by the 
 other? 
 
 At the best, confusion, and perhaps injustice, would follow 
 a construction giving the People or State Commissioner of Excise, 
 or both, power to maintain the action. 
 
 So far as I am able to discover, the act itself nowhere, by 
 exj less terms, gives the People, tlie State Commissioner of 
 Excise, or the People on the relation of the State Commissioner 
 of Excise, authority to prosecute any action. 
 
 That the State Commissioner of Excise cannot enforce the lien 
 given by section 111 has recently been decided. [Lyiiian v. 
 McGrieccy, 25 App. Div. 68. ) 
 
 The People cannot sue without title (People v. Ingcrsoll, 3S N. Y. 
 1) , nor except where enabled to do so by some statute. 
 (I'rople V. Bellknap, 58 Hun, 241.) 
 
 Penalties are provided for violations of the act, and " wilful " 
 violations for which no penalty or punishment is otherwise pre 
 pcribed, are made misdemeanors. (Section 42.) 
 
 Offenders may be prosecuted and tried as for crimes, i Sec 
 tions 30, 33, 34, 35.) 
 
 It seems to me, then, that thei-e is no authority in the original 
 act, either express or implied, to the people on the relation of 
 the State Commissioner of Excise to maintain an action on the 
 bond, provided in section IS. This, probably, is a defect in the 
 statute, as prior and subsequent legislation, regarding excise, 
 has been explicit on this subject. 
 
 The Excise Law of 1857, (Chap. 628, Laws of 1857) required 
 
Liquor Tax Law 339 
 
 the applicant to give a bond (§7) and named a party to sue 
 for its breacli. (§ 24 ; People v. Groat, 22 Hun, 164.) 
 
 The amendments to the Liquor Tax Law passed April 20, 1897, 
 (Laws of 1897, chap. 312) leave no uncertainty as to the proper 
 party now to bring suit. 
 
 The amendment to section 18 gives authority to the State 
 Commissioner of Excise " to commence and maintain an action 
 in his name, as such commissioner, in any court of record in any 
 county of the State, for the recovery of the penalty for breach of 
 any condition of any bond, or for any penalty or penalties, 
 incurred or imposed, for a violation of the Liquor Tax Law, and 
 all moneys recovered in such actions shall be paid over and 
 ai't ounted for in the same manner as are moneys collected under 
 si;bdivision 4 of section 11 of this act " ; that is, all moneys 
 recovered shall be paid to the State Commissioner of Excise, and 
 by him to the State Treasurer. (Sec. 11, subdivision 4, sec. 13.) 
 
 Section thirty-six is also amended by taking away from the 
 county treasurer and special deputy commissioner power to sue, 
 and conferring it upon the State Commissioner of Excise. 
 
 Section forty-two is amended by providing for a penalty of 
 |.50 for certain violations, in addition to the punishment and 
 penalties otherwise imposed " to be recovered by the State Com- 
 missioner of Excise in an action brought in his name, as such 
 commissioner, in any court of record in any county of the State." 
 
 The same section gives to the State Commissioner of Excise 
 authority to bring an action in his name, as such, to recover the 
 penalty provided for by section 38 — being for neglect of duty by 
 any officer charged with the execution of the provisions of the 
 act. 
 
 Thus it will be seen the amendments make the State Commis- 
 sioner the party for the prosecution of all actions given 
 by the statute, except under the 39th section, being for damages 
 done by persons while intoxicated. 
 
 While a statute containing obscure or doubtful provisions for 
 its execution cannot be held defective, because the Legislature 
 sees fit subsequently to amend it in those particulars {Band v. 
 Mass. Life Ins. Co., 18 Misc. 336-8) yet it seems to me that in 
 this case, where the original statute contained no express pro- 
 vision for the prosecution of actions arising under it, the amend- 
 ment explicitly conferring the power to sue upon the State 
 Commissioner of Excise, it must be assumed the Legislature was 
 
'MO _ Decisions Relating to 
 
 of opinion that the original statute was imperfect, and needed 
 the amendment to give it efficacy. This is a legislative intei-pre 
 tation. The amendment may be considered in intciijiuting the 
 original act. (^Sl)lith v. Tlic Fcople, 47 N. Y. 330; People v. 
 .Smith, 69 N. Y. 174; The Fvoplc c.c rcl. Savings Bank v. Butler, 
 U7 N. Y. 16t.) 
 
 It may be suggested, though the plaintifE's counsel does not so 
 claim in his brief, that section 1!)62 authorizes the bringing of this 
 action. The title of the chapter of which that section is a part 
 ib "Actions in Behalf of the People,'' and an action under the 
 section referred to must be in behalf of the People, and brought 
 by the " attorney-general or the district attorney of the county in 
 which the action is triable." This is not so brought. 
 
 It seems to me, therefore, that the plaintiff " The People of the 
 State of New Y'ork ex rel. Henry H. Lyman," has no interest in 
 this action, nor authority to sue; and that the complaint should 
 be dismissed. 
 
 Supreme Court, New York Special Term. Reported. N. Y. L. J. May 6, 1898. 
 
 Henry H. Lyman v. Fidelity & Deposit Company and Broadway 
 Garden Hotel and Cafe Company. 
 
 Scott, J.: This is an action upon a bond given under the 
 provisions of the Liquor Tax Law, conditioned for the faithful 
 observance of the law by a corporation to whom a liquor tax 
 certificate was issued. The complaint alleges in a single cause of 
 action a great number of violations of the law, and the defendant, 
 among other things, asks that the plaintiff be required to 
 separately state and number these violations as distinct causes 
 of action. The bond, which follows the requirements of the 
 statute, provides that it is "to cover every violation of the Liquor 
 Tax Law, and all fines and penalties incurred or imposed there- 
 under. An action for the breach of any condition of this bond 
 may be maintained \\'ithout pi-evions conviction or prosecution for 
 violation of any provision of said Liquor Tax Law." Reading 
 the statute and bond together it appears that evei-y violation, by 
 the person for whom the bond is given, of the provisions of the 
 Liquor Tax Law, constitutes a separate and complete cause of 
 
Liquor Tax Law 341 
 
 action for the forfeiture of the bond and the recovery of the 
 amount of penalty specified therein. If this be so, the plaintitf 
 has alleged something like twenty-six different causes of action 
 instead of only one. I think that the defendants' motion, so far 
 as concerns separately stating and numbering the causes of 
 action, must be granted. The defendant makes numerous other 
 requests to strike out portions of the complaint and to make 
 other portions more definite and certain. If the complaint is to 
 be amended by separately stating and numbering the causes of 
 action it is not, perhaps, necessary to pass upon these requests, 
 since the allegations which give rise to them may not be repeated 
 in the amended complaint. It may be useful, however, to consider 
 them at the present time, so as to obviate the necessity for a 
 further appeal to the court for a correction of the amended plead- 
 ing. The complaint abounds in statements which are mere 
 conclusions of law, and have no place in a pleading under our 
 practice. Such allegations are "in violation of the conditions and 
 covenants of the bond" and "that the suffering and permitting 
 said premises to become, be and remain disorderly was a violation 
 of said Liquor Tax Law and a breach of the conditions and 
 covenants in said bond contained" and "in violation of paragraph 
 •b' of section 31 of said Liquor Tax Law"' and many of similar 
 import. The code required that the complaint shall state the facts 
 upon which relief is sought, and with the facts properly and 
 sufficiently pleaded the court will be able to determine whether 
 they state "unlawful acts" or "violations of the conditions of the 
 bond and of the Liquor Tax Law." Most of the paragraphs of the 
 complaint alleging violations of the law as they stand would 
 require an order for a bill of particulars. Since the complaint 
 must be amended the application therefor need not be now enter- 
 tained. Indeed, in any view it is premature at the present time, 
 since no answer has been served and it does not appear that a 
 bill of particulars is necessary in order to enable the defendant 
 to answer. The motion that the several causes of action be 
 separately stated and numbered will be granted, but without 
 costs. Settle order on notice. 
 
342 Decisions Relating to 
 
 County Court, Saratoga County, May 1898. Unreported. 
 People v. George \V. Smith. 
 
 Houghton^ J. : I think it appears upon the face of the indict- 
 ment that there is but one crime charged. 
 
 The first count alleges that the defendant sold liquor to one 
 Hollis H. Bailey, in quantities less than five wine gallons at a 
 time, to be drunk upon the premises where sold, at the town and 
 village of Saratoga Springs, in the county of Saratoga, on the 
 19th day of April, 1897, without having paid the liquor tax and 
 obtained and posted up the liquor tax certificate permitting him 
 to sell and dispose of liquors in that manner. 
 
 The second count charges the selling to have been done by the 
 .same defendant, to the same person, on the same day and at 
 the same place, and in the same manner, and only differs from 
 the first count in alleging that the liquor was in fact drunk upon 
 the premises where the same was sold. 
 
 I do not think that this should be construed as charging a 
 second offense, but that on the contrary it may be said to be 
 fairly within the rule which permits the charging of the same 
 crime to have been committed in different ways, by different 
 counts in the same indictment. 
 
 I think the indictment charges only one crime, alleging it 
 to have been committed in a different manner by the two counts. 
 
 The demurrer is disallowed and overruled, and the defendant is 
 permitted, at his election, to plead to the indictment. 
 
 Let an order and judgment be entered accordingly. 
 
 Defendant excepts. 
 
 Supreme Court, Erie Special Term, May, 1898. Reported. 23 Misc. 477. 
 
 The People ex rel. Adelbert Langworthy, Relator, v. Joseph 
 E. Hazard, Sheriff of Cattaraugus County, Respondent. 
 
 Liquor Tax Law— Imprisonment can not be rr-ected as an alternative 
 for the nonpayment of a fine. 
 A person who has been convicted under the Liquor Tax Law can not 
 be imprisoned as a condition for the nonpayment of a fine imposed upon 
 him by the court, and when conffted under a sentence of such a tenor 
 is entitled to be discharged from imprisonment. 
 
Liquor Tax Law 34.'-! 
 
 Proceedings by habeas corpus to discharge the defendant from 
 the custody of the sheriff of Cattaraugus county. 
 
 D. E. Towell (W. G. Laidlaw, of counsel), for Relator. 
 
 Joseph H. Oongdon, District Attorney, for Respondent. 
 
 Titus, J. : This is a proceeding, by habeas corpus, to discharge 
 the defendant from the custody of the sheriff of Cattaraugus 
 county. 
 
 On the 14th day of March, last in the County Court of 
 Cattaraugus county, Adelbert Langworthy was convicted of the 
 crime of selling liquor in quantities less than five gallons at a 
 time, without having paid the tax and posted the liquor tax 
 certificate. On the 21st day of March, the court sentenced the 
 defendant to pay a fine of $200, and to stand committed to the 
 county jail until paid, not to exceed one day for each dollar 
 imposed as a fine. 
 
 The only question raised on the return of the writ was, whether 
 the court had the power, under the law, to impose a fine, and 
 imprison the defendant for failure to pay the same, under the 
 provisions of the Penal Code. 
 
 It does not seem necessary to enter into a discussion of this 
 question. The same question was before the Appellate Division 
 of the fourth department in People ex rel. Bedell v. Kinney, 
 reported in 24 App. Div. at page 309. In that case the writ was 
 dismissed, as having been prematurely taken, but Judge Ward, in 
 the opinion (although the court did not pass upon this question), 
 held that such a sentence was contrary to the provisions of the 
 Liquor Tax Law; that it conferred no power upon the court to 
 impose imprisonment as a penalty for not paying the fine. 
 
 In the case of People v. Stock, 26 App. Div. 564, recently 
 decided by the Appellate Division in the second department, the 
 court unanimously held, in a case where the facts are parallel in 
 all particulars to the case under consideration, that the provisions 
 of the Criminal Code providing that a judgment which imposes 
 a fine may also direct the criminal to be imprisoned until the fine 
 is paid, for a term not exceeding one day for each dollar of the 
 fine, are not applicable to a conviction under the Liquor Tax Law ; 
 that, as the latter statute covers the whole subject, prescribing 
 the punishment and the manner in which the fine shall be 
 
;J44 Decisions Relating to 
 
 collected, the- penalty imposed must be in accordance with that 
 statute, and that in such a case, where the defendant was con- 
 victed and fined, and, in the alternative, ordered sent to the 
 penitentiary not exceeding one day for each dollar imposed as a 
 fine, was void, to the extent of the imprisonment, and that the 
 defendant was entitled to his discharge. 
 
 Under any circumstauces I should feel bound to follow these 
 decisions, being parallel to the case under consideration, if I had 
 no personal opinion upon the question, but I am strongly of the 
 opinion that these cases express the true rule of law upon this 
 question, and that a defendant convicted under this statute can 
 not be imprisoned as a condition for the nonpayment of a fine 
 imposed by the court. 
 
 It follows, therefore, that the relator must be discharged from 
 his imprisonment, and it is ordered accordingly. 
 
 ( >idered accordingly. 
 
 Second Appellate Department, May, 1898. Reported. 29 App. Div. 624. 
 
 The People op the State of New York, Respondent, v. John 
 Seaman, Ajipellant. 
 
 This is an appeal from an order denying defendant's applica- 
 tion for a certificate to remove the prosecution of a charge against 
 him for violation of section 31 of the Liquor Tax Law, from a 
 Court of Special Sessions to the Grand Jury of Queens county, 
 pursuant to section 1406 of the charter of the city of New York. 
 
 Frederick L. Gilbert, of counsel for appellant. 
 
 Appellant is entitled to a trial by jury and in a Court of 
 Record having jurisdiction of crimes of the grade of felony. The 
 People V. McBIahon, unreported decision of Andrews, J. S. C. ; 
 Wynehamer v. People, 18 N. Y. 378 ; People v. Johnson. 2 Parker's 
 Rep. 322 ; Warren v. People. 3 Parker's Rep. .544 ; Eill v. People, 
 20 N. Y. 363. 
 
 The provisions of subdivision 1 of section 35 of the Liquor Tax 
 Law have not been repealed directly or by implication either by 
 section 1406 of the Greater New York Charter or otherwise. 
 
Liquor Tax Law 34o 
 
 {Bowen v. Lease, 5 Hill, 221 ; Rochester et al. v. Barnes, 26 Barb. 
 657; Excelsior Petroleum Co. v. Embury, 67 Barb. 261; People ex 
 rel. Kiiigsland v. Palmer, 52 N. Y. 83 ; Mongeon v. People, 55 N. Y. 
 613; V. /S'. V. Ghaflin, 97 U. S. 546.) 
 
 William J. Youngs, attorney for respondent. 
 
 Daniel Underbill, Jr., of counsel. 
 
 Section 1406 of tbe charter of the City of New York super- 
 sedes section 35 of tbe Liquor Tax Law, witbin tbe city of New 
 York. 
 
 Board of Excise Gomm. v. Burtis, 103 N. Y. 136 ; Lyddy v. L. I. 
 Gity, 104 N. Y. 218 ; Heckman v. Pinckiicij, 81 N. Y. 211 ; Boivrn 
 V. Lease, 5 Hill, 221 ; People v. Brooklyn, 69 N. Y. 605. 
 
 It is proper to consider tbe title of a statute in considering its 
 purposes and meaning. People ex rel. Collins v. Spicer, 99 N. Y. 
 225; People ex rel. Jackson v. Potter, 47 N. Y. 375. 
 
 Tbe cbarter and tbe Liquor Tax Law are to be considered 
 togetber. Smith v. The People, 47 N. Y. 330; Chase v. Lord, 77 
 N. Y. 18; People ex rel. Van Riper v. Tsf. Y. Cuth. Protectory, 106 
 N. Y. 614 ; In re Livingstone, 121 N. Y. 104. 
 
 Tbe defendant bas not a constitutional rigbt to a trial by 
 jury. U. 8. v. Cruickshank, 92 U. S. 542; People v. PenhoUow, 5 
 N. Y. Grim. Eep. 42; People c.r rel. Coviafordv. Dutcher.S^'N.Y. 
 240; People ex rel. Murray v. Justices of Special Sessions, 77 
 N. Y. 406 ; People v. Rawson, 61 Barb. 619 ; Devine v. People, 20 
 Hun, 98. 
 
 Appeal dismissed on argument. 
 
 All concurred. 
 
34() Decisions Relating to 
 
 First Appellate Cepartment, May, 1898. Reported. 29 App. Div. 390. 
 
 lu the Mutter of the /vpplication of Henry H. Lyman, 
 Respondent, for an Order Revoking and Canceling Liquor Tax 
 Certificate No. OOSO. Granted to Henry Korndorfer, Appellant. 
 
 Liquor Tax Law — Use for the sale of liquor of a building witliin the 
 prohibited distance from a church. 
 A building rented by an unincorporated society, having a president, 
 vice-president, secretary and treasurer, wbose purpose is "to preach and 
 teach the truth, as it is revealed in the Bible, the Word of God," in which 
 building, since July 5, 1896, religious services have been held on Sunday 
 and at stated times during the week, together with Sunday school, at 
 which ministers of the Christian Protestant faith oflRciate, is a building 
 used exclusively as a church within the meaning of the Liquor Tax Law; 
 and where, upon an application made under section 28 of the law for the 
 cancellation of a certificate upon the ground that the statements contained 
 in the application therefor were untrue, and that the place at which the 
 business was carried on was within the prohibited distance from a build- 
 ing used exclusively as a church, it appears that, although the premises 
 had, under a license granted in May, 1895, been occupied as a saloon up to 
 April 2, 1896, the certificate had then been surrendered, the sale of liquor 
 discontinued, and that the premises had remained vacant for more than 
 a year thereafter, at the expiration of which time they were opened as a 
 hotel Ijy the present occupant, by whom a renewal of the license was 
 obtained, such renewal is in violation of the statutory provision prohibiting 
 the carrying on of the liquor business within 200 feet of a church. 
 
 AriT.Ai. liy Henry Kf)rii(l()rrer from an order of the Supreme 
 <:()urt, made at the New York S]iecial Term and entered in the 
 ofliee of the elerk of the county of New York on the 22d day of 
 Ni)vember, 1S97, revdkiiii;' and canceling liquor tax certificate No. 
 G080, granted to Henry Korndorfer. 
 
 William ,S^. Andrews, for the appellant. 
 
 ]?oyal R. Scott, for the respondent. 
 
 Order aiBrmed, with twenty-five dollars costs and disburse- 
 ments, on the opinion of the court below, and on the authority of 
 People c.r. rcl. Bagle!/ v. Hamilioii {IV) App. Div. 428). 
 
 Present — Van Brunt, P. J., Barrett, Rumsey, Tngraham and 
 McLaughlin, JJ. 
 
 The following is the opinion of the court below: 
 
Liquor Tax Law 347 
 
 Stover, J. This is ;in application under section 28 of the 
 Liquor Tax Law (Chap. 112, Laws of 1896) for the cancellatioa 
 of a certificate upon the ground that the statements contained in 
 the application are untrue, and that the place at which the 
 business was carried on was within the prohibited distance of a 
 building used exclusively as a church. The application was 
 verified on the 4th day of June, 1897, for permission to carry on 
 the business at 2013 IJoston road. It appears from the testimony 
 that a license had been issued by the old excise board in May, 
 
 1895, and that the premises were occupied as a saloon up to April, 
 
 1896, when the license was suirv^^ndered, the surrender being on 
 the 2d day of April, 1890. From the time of the surrender down 
 to June 9 or 12, 1897, no liquor traiBc was carried on at the place, 
 and the premises were vacant. The premises 2011 Boston road 
 had been used for business purposes up to the 15th of June, 1896, 
 at which time they were hired by the society; on the fifth of 
 July they were opened, and since that time have been used exclu- 
 sively for religious services, consisting of religious discourses or 
 sermons by laymen and by ministers, the objects and purposes 
 of the society being stated by its oflicers to be " To preach and 
 teach the truth as it is revealed in the Bible, the Word of God.'' 
 It is called the West Farms Mission, holding religious services 
 on Sunday, and at stated times during the week, together with 
 Sunday school, at which various ministers of the Christian 
 Protestant faith officiate. Of these facts there is no dispute, 
 but it is claimed by the respondent that the answer stating that 
 the liquor traffic could be legally carried on there was not untrue, 
 because the traffic was being carried on on the 23d of March, 1896. 
 The business proposed to be carried on by the respondent was 
 that of hotel keeper and not of a saloon keeper. Under the 
 decisions (Matter of Zinzow, 18 Misc. Rep. 653, and People ex 
 rel. Cairns v. Murray, 148 N. Y. 171), whenever the licensee dis- 
 continued business the exemption ceased and the place could 
 not obtain a liquor tax certificate. In the case under considera- 
 tion, business had been suspended for a long time, and in the 
 meantime the premises have been refitted for the purposes of the 
 new business that was to be carried on, so that if the building 
 2011 was used exclusively as a church, the answer was not a trop 
 one, and a liquor tax certificate could not legally issue for the 
 
348 Decisions Relating to 
 
 premises 2013. It is strenuously insisted by the respondent that 
 these facts do not disclose that the building is used exclusively 
 as a church. In People ex rel. Gentilesco v. Board of Excise, (7 
 Misc. Rep. 415) it was said that a liberal construction of the 
 Excise Law was to be indulged in, and citing Kent's Com- 
 mentaries : " It was held to be the duty of the judges to make 
 such a construction as should repress the mischief and 
 advance the remedy." (1 Kent Com. 464.) The law does 
 not undertake to define or restrict the definition of the 
 words " occupied exclusively as a church," and I think it 
 must be left to such reasonable construction as will accom- 
 plish the purpose intended by the Legislature, viz., to prevent the 
 traffic of liquor in proximity to such class of buildings, t'nder the 
 laws of this State it is not necessary that a religious society 
 should be iiieorporated, nor is it necessarv that they should hold 
 to any particular tenets or creed; but great liberality and toler- 
 ance is given in the organization of religious societies and the 
 promulgation of religious beliefs. The evidence here shows that 
 this is a society having a president, vice-jnesident, secretary and 
 treasurer. They occupy these premises exclusively for the teaching 
 of the Gospel and such services as are usually carried on by church 
 societies. So that it may well be said that this building is used 
 exclusively as a church; that is, a place where a religious society 
 holds its stated meetings for the purposes of religious 
 observances and teachings in accordance with the Christian faith. 
 How long this has continued, or how long it may continue, is 
 immaterial under the statute. It had continued for some consider- 
 able time before the application here was filed, and the fact that 
 it did exist at the time of filing the application for the certificate 
 is sufficient to protect it from the proximity of a place where the 
 traffic of liquor is carried on. It follows that the answers were 
 untrue ; that the traffic of liquor can not be legally carried on at 
 2013 Boston road, and the certificate must be canceled. 
 
 Order signed. 
 
Liquor Tax Law 349 
 
 Third Appellate Department, May, 1898. Reported. 30 App. Div. 62. 
 
 The Peoplt'I op the State op New York^ Eespondentj v. Michael 
 J. DipPOLD^ Appellant. 
 
 Violation of the Liquor Tax Law — Charge as to the weight which the good 
 character of the defendant should have — Good faith of parties order- 
 ing a meal at which the liquor was furnished. 
 
 In a criminal action a charge by the r^ourt thnt, "proof of good character 
 is of absolutely no weight as a defense, if the jury are satisfled beyond a 
 reasonable doubt, arising from all the evidence, that a man charged with 
 crime has actually committed it," is not erroneous, as by the use of the 
 words "all the evidence," the Jury is necessarily called upon to consider 
 the evidence of the man's character. 
 
 In an action in which the defendant was convicted of selling liquor upon 
 Sunday, in violation of the provisions of section 31 of the Liquor Tax 
 Law (Chap. 112 of the Laws of 1896, as amended by chap. 312 of the Laws 
 of 1897), the main questions were whether the defendant kept a hotel, 
 and, if so, whether the liquor sold was sold to a guest of the hotel. 
 
 Held, that the element of good faith was involved, and that the court 
 did not err in submitting to the jury the evidence as to the good faith of 
 the parties who were claimed lo have ordered the meal, in the course of 
 which it was alleged by the defendant that the liquor was furnished. 
 
 Appeal hy the defendant, Michael J. Dippold, from a judgment 
 of the County Court of Ulster county in favor of the plaintiff, 
 entered in the office of the clerk of the county of Ulster on the 
 17th day of December, 1897, upon the verdict of a jury convicting 
 him of a violation of subdivision a of section 31 of the Liquor 
 Tax Law. 
 
 Brinnier & Newcomb and John F. Cloonan, for the Appellant. 
 
 Charles P. Cantine, District Attorney, for the Respondent. 
 
 Merwin, J . : The defendant was convicted of selling liquor 
 upon Sunday in violation of the provisions of section 31 of the 
 Liquor Tax Law (Chap. 112 of the Laws of 1896, as amended by 
 chap. 312 of the Laws of 1897). 
 
 The defendant claims that the court erroneously instructed the 
 jury as to the weight and consideration that should be given to the 
 good character of the defendant; erroneously submitted to the 
 jury evidence as to the good faith of the party or parties who, it 
 
350 Decisions Kelating to 
 
 was claimed, ordered and obtained a meal, and also made divers 
 errors in its rulings upon evidence. No exception was taken by 
 the defendant to the charge, but the defendant claims the benefit 
 of the pro\isioiis of section 527 of the Code of Criminal Procedure 
 which allows the granting of a new trial in the interest of justice, 
 though no exception has been taken. 
 
 1. In the course of its charge the court said: "It has been 
 proven that this defendant is a man of good character, and 
 gentlemen of the highest business and social standing in the city 
 have testified that his character was excellent and irreproach- 
 able. The trend of this testimony is to strengthen the presumo- 
 tion of innocence. It does not necessarily prove that he is inno- 
 cent, but that the proof is introduced to show that men of good 
 character are far less apt to commit crimes than men of bad 
 character. But proof of good character is of absolutely no 
 weight as a defense if the jury are satisfied beyond a reasonable 
 doubt arising from all the evidence that a man charged with 
 crime has actually committed it." 
 
 The court had previously charged as follows : '■ The law pre- 
 sumes every man innocent until -he is proven guilty by all the 
 evidence in the cawe to the satisfaction of the jury, beyond a 
 reasonable doubt arising from all the evidence, and the Tjurden 
 never shifts from the prosecution to the defense. It remains 
 with the prosecution from the begiuning to the end of the trial, 
 and the prosecution is obliged to satisfy the jury beyond a reason- 
 able doubt arising from all the evidence of the truth of everv 
 fact which they charge, the proof of which is necessary to justify 
 a conviction." 
 
 The court thus emphasized the idea that all the evidence musr 
 be taken into account in determining whether or not there was 
 a reasonable doubt as to the guilt of defendant, and did not, as 
 in some of the cases cited by the counsel for the defendant, 
 exclude the evidence of good character in determining that ques- 
 tion. And then, after referring to the good character of 
 defendant and its natural effect, the court said to the jury that if, 
 after a consideration of all the evidence, they were satisfied of 
 the guilt of defendant beyond a reasonable doubt, the proof of 
 good character was not a defense. This direction to the jury to 
 consider all the evidence necessarily called upon them to consider 
 the evidence of character along with the other evidence, and it 
 was only in the contingency of the conclusion of guilt upon all 
 
Liquor Tax Law 351 
 
 the evidence, good ckaratter with the rest, that the lact o! good 
 character was declared to be unavailing. In this view the charge 
 was not erroneous. There was no doubt as to the meaning of the 
 court; and if, to the mind of the counsel, there was any uncer- 
 tainty about it, the attention of the court should have been called 
 to it. There is no ground tor saying that the jury were misled. 
 This is not like the case of Remsen v. People (43 N. Y. 6), 
 where a chai'ge that, in substance, took from the jury the con- 
 sideration of good character when looking at the other evidence 
 in the case upon the subject of the guilt of the defendant was 
 held to be erroneous. (See People v. Sweeney, 133 N. Y. 611.) 
 Nor do the other cases cited by the counsel for the defendant 
 reach the question here. No error on the part of the coiirt is 
 shown. 
 
 2. The main questions in the case upon the facts were whether 
 the defendant kept a hotel within the meaning of the law, and 
 if he did whether the liquor, claimed to have been sold by him, 
 was sold to a guest of the hotel. There was evidence tending to 
 show one sale for the joint benefit of four people, and that the 
 liquor was used by them together in connection with what was 
 claimed to be a meal. By section 31 of the act, as amended In. 
 1897, a guest of a hotel is defined to be: 
 
 " 2. A person who, during the hours when meals are regularly 
 served therein, resorts to the hotel for the purpose of obtaining, 
 and actually orders and obtains at such time, in good faith, a 
 meal therein." 
 
 The element of good faith is involved in this definition, and 
 the court did not, we think, err in submitting to the jury evidence 
 as to the good faith of the party or parties who ordered the meal 
 in question. 
 
 3. The defendant claims that the court erred in denying the 
 motion of defendant to strike out the evidence of a witness that 
 certain books showed that beer was sold to the defendant. Inas- 
 much as the witness testified, apparently from his own knowledge, 
 that the defendant paid the bill, it is difficult to see how the 
 defendant was harmed by the ruling. 
 
 The defendant claims that the court erred in admitting in 
 evidence a letter written by a son of the defendant, in the name 
 of the defendant, to the mayor of the city, and certifying that the 
 defendant had all the requisites necessary under the Eaines Law 
 to run a hotel. The son testified that on the morning of the day 
 
352 Decisions Relating to 
 
 in question he went to see the mayor, and at his suggestion wrote 
 and delivered to him the letter; and the mayoi- teHtified that he 
 delivered it to the chief of police. The sou had no special 
 authority from the defendant to write the letter. He, however, 
 testified that upon that day he was in the employ of the defendant, 
 and that his duty was to see that everything ran right there; 
 that he was there to look around and see that everything was 
 served and done right. Assuming that the letter may have been 
 objectionable, it was merely a statement of the attitude of the 
 defendant, as claimed by the defendant on the day in question, 
 and as he claimed at the trial it in fact was. It is not apparent 
 how a statement of the defendant's position, in a manner entirely 
 correct according to his claim then and now, affected any sub- 
 stantial right of the defendant. (Code Crim. Proc. § .542.) 
 
 Nor did the court err in rel'usini;- to strike out the testimony 
 of the witness Atkins as to the transaction because he testified 
 that Mr. Linson nave the order, ^^'llile pre\ii)us witnesses had 
 testified that the order was given by Jlr. Wieber. There was 
 but one transaction and one sale. It was not material which one 
 of the four gave the order. 
 
 We have examined the other questions raised by the defendac^ 
 and find no good reason for reversal. 
 
 All concurred, except Hereiok, J., not sitting. 
 
 judgment affirmed. 
 
 Third Appellate Department. May, 1898. Reported, 30 App. DIv. 135. 
 
 The People of the State op New York ex rel. William H. D. 
 Saveet, Appellant, v. Henry H. Lyman, State Commissioner of 
 Excise of the State of New York, Respondent. 
 
 Civil service — The appointing power may decline to make a probationary 
 appointment absolute — Such refusal is not a "removal" within the 
 meaning of chapter 821 of 1896. 
 
 The Civil Service Act (Laws of 1S83, chap. 354), providing for a period 
 of probation before an appointment shall be made absolute, limits the 
 term of the appointment thereunder to the probationary period fixed by 
 the civil service rules, and confers authority upon the appointing power 
 to refuse, at the expiration of the probationary period, to make the 
 appointment absolute if it determines that the probationary appointee is 
 not qualified for the position. 
 
Liquor Tax Law 353 
 
 A refusal to make the appointment absolute is not a "removal" of the 
 probationary appointee from bis position within the meaning of chapter 
 821 of the Laws of 1S96, declaring that no honorably discharged Union 
 soldier, holding a position by appointment or employment, "shall be 
 removed from such position or employment except for incompetency or 
 misconduct shown, after a hearing upon due notice, upon the charge made, 
 and with the right to such employee or appointee to a review by writ of 
 certiorari." 
 
 Herrick, J., dissented. 
 
 Appeal by the relator, William H. D. Sweet, from an order of 
 the Supreme Court, made at the Ulster Special Term and -entered 
 in the office oi the clerk of the county of Albany on the ISth day 
 of May, 1897, denying the relator's motion for a peremptory writ 
 of mandamus to compel the said Henry H. Lyman, State Commis- 
 sioner of Excise of the State of New York, to reinstate the relator 
 in the position of special agent in the excise department. 
 
 The relator, an honorably discharged Union soldier, naving 
 successfully passed the civil service examination required by the 
 provisions of chapter 354, Laws of 1883, and another examination 
 required by the defendant, received from the latter the rollowing 
 communication : 
 
 " Office of Department of Excise. 
 "Albany, Sept. 25th, 1896. 
 " To William H. D. Sweet, 
 
 " 19 N. Y. C. Avenue, Albany, N. Y. : 
 
 " This is to inform you that, under the provisions of the Civil 
 Service Rules, I have selected you for appointment to the position 
 of special agent in this Department for a probationary term of 
 three months from the date when you begin service. Should your 
 conduct and efficiency during such probationary term prove satis- 
 factory, you will, at its close, receive a regular appointment; 
 otherwise your employment will cease. The salary attached to 
 such position is at the rate of |1,200 per annum. 
 
 " This conditional appointment does not preclude prompt dis- 
 charge from service at any time during such probationary term, 
 in case of misconduct or inefficiency. 
 
 "A prompt reply is requested, stating whether this appointment 
 is accepted, and giving the earliest date when you can present 
 yourself for service. 
 
 " Very respectfully, 
 " H. H. LYMAN, State Com. of Excise." 
 
 23 
 
354 Decisions Relating to 
 
 Having accepted the appointment, the relator, on the same 
 day, was formally appointed to the office of special agent, and 
 tlicrcafter entered upon the duties of said position at Ogdens- 
 burgh. 
 
 About December 10, 1890, he received from the defendant the 
 following letter: 
 
 "Albany, Dec. 19th, ls90. 
 " Mr. W. H. D. Sweet, Ogdensburgh, N. Y. : 
 
 " Dear Sir. — I have to inform you that your eflSciency and 
 capacity for the work required of a special agent, during your 
 employment in this department for a probationary term of three 
 months, have not been fdund satisfactory, and that in accordance 
 «ith the terms of y(}ur diiuinal appointment, as i)rescribed in the 
 civil service rule X(i. 'M. your employment by this dcjiartment will 
 cease on the 2:id day of December, ls9(i. 
 
 " Yours, respectfully, 
 " H. H. LYMAX, State CowinissiiDicr of E-rcisc" 
 
 Since the 2;)d day of December, 1896, the relator has not 
 received any assignment of duty from the department of excise, 
 and he has been inl'ormed by the defendant that he would not 
 thereafter be employed. 
 
 The relator thereafter a[>plied to the court below for a peremp- 
 tory writ of mandamus directed to the defendant, commanding 
 him to reinstate said relar()r in the position of special agent in 
 the department of excise, and to take such action as might be 
 necessary to audit his claim fm- services since the 23d day of 
 December, 1S9G. 
 
 On the hearing of the motion for a mandamus, the State Com- 
 missioner of Excise read an affidavit which alleged want of 
 qualification, and incapariiy and unfitness on the part of the 
 relator for the ofiice in question. 
 
 The motion for a peremjitory writ of mandamus was denied in 
 the court below, and from the order thereupon entered the relator 
 has appealed to this court. 
 
 Eugene D. Flanigan, Tor the appellant. 
 
 T. E. Hancoek, Attorneji-General , and (?. D. B. Hafthroiick. 
 Dcpvty Attorney-General, for the respondent. 
 
LiQuoK Tax Law 3S5 
 
 Putnam, J. By the provisions of chapter 354, Laws of 1883, 
 the Governor was authorized to appoint three Civil Service Com 
 missioners who were authorized to aid the Governor in promul- 
 gating rules for carrying the act into effect. The statute provides 
 for open, competitive examinations for testing the fitness of 
 applicants for the public service; that appointments should be 
 made from those graded highest as the result of such competitive 
 examinations ; that " there shall be a period of probation before 
 any absolute appointment or employment aforesaid." 
 
 In pursuance of and within the power conferred by the statute 
 in question, the Governor promulgated the following rule: 
 " Every original appointment or employment in the civil service 
 shall be for a probationary term of three months, at the end of 
 which time, if the conduct and capacity of the person appointed 
 or employed shall have been found satisfactory, the petitioner 
 shall be absolutely appointed or employed, but otherwise his 
 appointment shall cease." 
 
 The appointment of relator tor the probationary period of 
 three months was, therefore, authorized. His term continued for 
 such period and ended with its expiration. If he was competent 
 and had not been guilty of misconduct, at the expiration of the 
 three months, he was undoubtedly legally entitled to a reappoint- 
 ment. Whether he was or was not competent, was lor th(? 
 defendant to decide. The act provides : " Notice shall be given 
 in writing by the appointing power to said commission of the 
 person selected for appointment or employment from among 
 those who have been examined, of the place of residence of such 
 persons, of the rejection of any such persons after probation," etc. 
 This provision evidently contemplates that the appointing power 
 shall have the power to reject an applicant for an office after 
 probation. 
 
 Hence the probationary appointment of the relator for three 
 months was authorized by the act of 1883. At the end of that 
 period the defendant had the power to decline to reappoint him, 
 if not qualified for the position, and to pass on the question of 
 such qualification. 
 
 The question in the case is whether the pi^ovision of chapter 
 821, Laws of 1896, amending chapter 312 of the Laws of 1884, 
 which provides that no honorably discharged Union soldier hold- 
 ing a position by appointment or employment " shall be removed 
 from such position or employment except for incompetency or 
 
356 Decisions Relating to 
 
 misconduct shown, aftvr a licuriiuj uijoii due notice upon the 
 charge made, and with the right to such emijl(jyee or appointee to 
 a review by writ of certiorari," applies to this cawe. 
 
 The relator was not removed from any position. He was 
 properly and legally appointed to the position of special 
 agent for three months, and at the expiration of his term 
 the State Commissioner of Excise declined to make an abso- 
 lute appointment. If the construction placed upon the act 
 of 1S83 by the learned counsel for the appellant is cor- 
 rect, it deprives the provision of that statute, that there 
 shall be a period of probation before an alisohite appoint- 
 ment is iTiaf'C, of ;'J1 force and effect. As he construes the act, in 
 the case of an honorably discharged Union soldier, there can be no 
 probationary ap])ointment ; the original appointment although 
 stated to be for three months, is in effect an ab^nlute one for an 
 unlimited period, as the a])]]<>intee can not be deprived of the 
 oflBce at the expiration of the probationary period, unless for the 
 same reason and after the same procedure as if the appointment 
 was an absolute one, and for an unlimited period. 
 
 While the question as to the construction that should be given 
 to chapter 821. Laws of ISDC), is not entirely clear, we are disposed 
 to think its provisions relating to the removal from oiBce of a 
 r^nion soldier were not intended to apply to the case of one to 
 whom the State Commissioner of Excise declined to give an 
 absolute appointment after the expiration of the probationary 
 period. We do not regard such declination as a removal. The 
 act no more applies to such a case than it would have applied to 
 the act of the defendant had he, after the relator's successful civil 
 service examination, refused to make the probationary appoint- 
 ment. 
 
 It may be said that if an appointing ofScer of the State can in 
 such a case as this, after a probationary period, arbitrarily, with- 
 out notice to the appointee, and without giving him an opportunity 
 to produce proofs as to his capacity, or to be heard in the matter, 
 decline to give him an absolute appointment, such officer has the 
 power to defeat the purpose of the Civil Service Act. We think, 
 however, that in this case, if the relator was competent and had 
 not been guilty of misconduct during the probationary period, 
 and was entitled to an absolute appointment, that he wis not 
 without a remedy. At the expiration of his original appointment 
 for three months he could, alleging the facts, and that he was 
 
Liquor Tax Law 357 
 
 qualified to perform the duties of special agent, and had been 
 guilty of no misconduct, have applied for an alternative writ of 
 mandamus. Had the defendant denied his competency, that 
 question could have been tried in such proceeding. Had it been 
 determined in favor of the relator, he would have been entitled to 
 a peremptory writ compelling the State Commissioner of Excise 
 to give him an absolute appointment (Chap. 821, Laws of 1896), 
 and under the provisions of the act of 1896, in such proceeding, 
 the burden would have been upon the defendant to show the 
 relator's incompetency. 
 
 On the hearing of the motion for a peremptory mandamus 
 below, the defendant read an affidavit which, if true, showed that 
 the relator was incompetent for the position of special agent, and 
 that the State Excise Commissioner properly declined to reappoint 
 him. On this appeal we are compelled to assume that the aver- 
 ments in the defendant's opposing affidavit are true, and that the 
 relator was in fact incompetent to discharge the duties of the 
 position of special excise agent. {People ex rel. Corrigan v. The 
 Mayor, etc... 149 N. Y. 215; Matter of Hachler v. N. Y. Produce 
 Excliange, Id. 414; People ex rel. Port Chester Savings BaiiJ: v. 
 Crom-well, 102 id. 477.) 
 
 When the defendant read the affidavit alleging the relator's 
 incompetency, we think the latter should have asked for an 
 alternative writ and obtained a trial. If on such trial the 
 defendant had failed to show the incompetency of the relator for 
 the position of special agent in the excise department, an order 
 requiring the State Commissioner of Excise to give him an 
 absolute appointment might have been properly granted. 
 
 We are of opinion that the relator has not been removed from 
 a position or employment within the meaning of chapter 821, 
 Laws of 1896, and, hence, that the order should be affirmed, with 
 costs. 
 
 All concurred, except Heerick, J., dissenting. 
 
 Landon, J. : I concur in the result. The only appointment 
 which the relator received was a probationary one of three 
 months. As that expired by its own limitation, he was not 
 removed from office, and, therefore, can not invoke chapter 821, 
 Laws of 1896, which secures him from arbitrary removal during 
 the term for which he was appointed. All he can complain of is 
 
.'jns Di:cMsio.\s Relating to 
 
 tiiut he was not ;it the end of tlic probationary appointment 
 absolutely ajipointed. Civil servire i-iiic ;!G .says thai, to entitle 
 him to such absolute appointment, his coniluct and capacity "shall 
 have been found satisfactory." The I'cJator has not shown that 
 his conduct and capacity have been found satisfactory, but is 
 confronted with the defendant's finding the other way. The 
 relator, therefore, has not shown his clear lei;al right to an 
 absolute appointment. But. T think it was for the appointing 
 power to jiass upon his conduct and capacity during the probation- 
 ary period, for the reason that if the defendant had found them 
 satisfactory, it was his duty to appoint him absolutely, and this 
 power for the purpose of absolute appointment implies the power 
 to find either way. Such finding was in its nature a judicial act. 
 and can not be reviewed upon mandamus. 
 
 Herrick, J. (dissenting) : 
 
 1 am unable to concur either in the reasoning or result of Mr 
 Justice Ptttnam's and ^Ir. Justice Lanhon's opinions. 
 
 Section 9 of article 5 of the Constitution provides that appoint- 
 ments in the civil service of the State, and in the different sub- 
 divisions thei-eof. sli:ill be made according to merit and fitness, to 
 be ascertained as far as practicable by competitive examinations; 
 and it further [)i'ovi(les "that honoi-ably discharged soldiers and 
 sailors from the army and navy of the United States, in the late 
 rivil war, who are citizens and residents of this State, shall be 
 entitled to preference in appointment and promotion without 
 regard to their standing on any list from which such appointment 
 or promotion 7nay be made." 
 
 The CJourt of Appeals has held that it is "olear that this section 
 of the Constitution, read according to its letter and spirit, con- 
 templates that in all examinations, competitive and non- 
 competitive, the veterans of the civil war ha^■e no preference over 
 other citizens of the State, but when, as the result of those 
 examinations, a list is made up from wMiieh appointments and 
 promotions can be made, consisting of those whose merit and 
 fitness have been duly ascertained, then the veteran is entitled to 
 preference, without regard to his standing on that list." {.Matter 
 of Kei/mrr. 148 N. Y. 219, 22.'').) 
 
 Prior to the adoption of this provision of the Constitution, 
 various laws had been passed providing for preference to veterans. 
 None of these laws, however, prevented veterans who had once 
 
Liquor Tax Law 359 
 
 been appointed iTom being summarily removed; to remedy that 
 defect in the law the then existing statute (Laws of 1884, chap. 
 SV2) was amended by chapter 716 of the Laws of 1894, which 
 provided that removals could not be made except for incompetency 
 and conduct inconsistent with the position held by the employee 
 or appointee. It was held, however, that, under this law, it was 
 left to the appointing power to determine Avhether the facts existed 
 which authorized a removal, subject to responsibility for any will- 
 ful or per^'erse action ; and that no notice or opportunity to be 
 heard was required to be given to the person whose removal was 
 cdntemplated before the power could be exercised. [People ex rel. 
 Fonda y.' Morton 148 N. Y. 156.) 
 
 To remedy the defect in the statute which was revealed by the 
 decision of the case of People ex rel. Fonda v. Morton, the statute 
 in relation to veterans was further amended by chapter 821 of the 
 Laws of 1 8f)6, which provided that no veteran holding a position 
 by appointment- or employment in the State of New York, or in 
 any of the subdivisions thereof, should be removed from such 
 position or employment, "except for incompetency or misconduct 
 shown, after a hearing, upon due notice, upon the charge made." 
 
 At the time tlie relator was removed from office the Constitution 
 provided that ^'eterans who had pa-'ised a civil service examination 
 should be given a preference in employment or appointment, and 
 the statute jirovided that one holding a position by employment or 
 appointment could not be removed, except upon charges, and after 
 notice of such charges and opportunity to be heard thereon. 
 
 It is to be presumed that the framers of the Constitution and 
 the people who adopted it were in earnest in including this 
 provision in reference to veterans of the late civil war, and 
 intended that it should be complied with, and it is presumed that 
 a like intent moved the Legislature in the passage of a statute 
 which requires notice and an opportunity to be heard before such 
 a person shall be removed from his employment or appointment; 
 that neither the constitutional or statutory provisions were 
 intended to be mere empty sentiments, sounding in patriotism and 
 gratitude, but meaning nothing, but were intended to enforce a 
 practical and substantial recognition of the loyal services of those 
 who preserved the government from destrnction ; and both the 
 Constitution and the statute should be interpreted and construed 
 to effectuate that intent. 
 
 Neither the oiScers whose duty it is to execute the laws, nor 
 
860 Decisions 1;l;latin'o to 
 
 the courts whose duty it is to interpret them, should be astute to 
 discover ways and means whereby the letter of the Constitution 
 and the statute may be observed, but the spirit violated, and any 
 statute in conflict \\ ith the Constituti(jn, in spirit <ir in its results, 
 should be disregarded as void, and any construction of a statute 
 which enables the spirit of the Constitution or a statute to be 
 evaded, should be frowned upon and rejected. 
 
 The reason given by the defendant for not giving the relator 
 notice, is that he was never appointed. Having passed his com- 
 petitive examination, it was the defendant's duty, under tliR 
 Constitution, to appoint him; the appointment he did give him 
 will be presumed to have been made pursuant to the Constitution, 
 and holding a jxisition by virtue of such appointment he can only 
 be removed therefrom pursuant to the statute, and the defendant 
 cannot be permitted to assert his disobedience of the Constitution 
 as a reason why be is not bound by the requirements of the 
 statute. 
 
 The preference given by the Constitution is an absolute prefer- 
 ence to employment or appointment — an absolute appointment 
 or employment, not a conditional or probationary one. 
 
 The only limitation is that the veteran shall have passed a 
 competitive examination for merit and fitness; that is the only 
 examination, the only test required. The Legislature has no 
 power to add to that requirement of the Constitution, and having 
 complied with it the veteran is entitled to be employed or 
 appointed. 
 
 Chapter 821 of the Laws of ISOG provides for the manner of 
 revoking or terminating such appointment or employment. 
 
 The result of his civil service examination has presumptively 
 shown his merit and fitness, and secured him his employment or 
 appointment; and before he can be removed it must be by his 
 own misconduct, or by showing by actual demonstration that the 
 result of his examination was incorrect or misleading, and that 
 he is, in truth, unfit and incompetent, and upon those questions 
 he is entitled to be heard. 
 
 If the practice indulged in in this case is to be upheld, then 
 the appointment of a veteran who has passed his civil service 
 examination can he prevented, and no preference, in fact, given 
 to him; or, if it is held that he has had his preference under the 
 Constitution by this probationary appointment, then he has been 
 removed from the position he acquired by virtue of the provisions 
 
Liquor Tax Law 361 
 
 of the Constitution, without notice and without a hearing, us the 
 statute provides, and thus a way is pointed out by which a 
 veteran can be removed from the civil service list without 
 receiving any appointment. 
 
 If the probationary appointment, so-called, is not a final 
 appointment which entitles the person appointed to hold his 
 position unless removed upon charges, in the manner pointed out 
 by the statute, then such final appointment is not an appoint- 
 ment made according to merit and fitness ascertained by com- 
 petitive examinations, as the Constitution requires, but is one 
 resulting from his conduct during his probationary term, such 
 conduct being a sort of examination, necessarily non-competitive, 
 and, therefore, not in accordance with the Constitution. Then, 
 too, this latter examination is made and the result passed upon 
 by the appointing oflScer. 
 
 The Court of Appeals, in answer to the argument that ia 
 counties, towns and villages where no examiners have been 
 provided, or provisions made for carrying the Constitution into 
 effect, each oflflcer having appointments to make could himself 
 examine the applicants for positions, and in that way determine 
 who should be appointees by a competitive examination, said: 
 " Undoubtedly, but it will readily be seen that this system would 
 practically nullify the Civil Service Law and bring it into dis- 
 repute." (Chittenden v. Wurster, 1.52 N. Y. 345, 356.) 
 
 How much more will it tend to nullify and bring the law into 
 disrepute where the appointing offlcer is conducting an examina- 
 tion which is non-competitive and of the result of which he is the 
 sole and only judge, and where, upon charges of incompetency 
 and unfitness, he is at once the accuser, witness and judge, and 
 where the result is open to the suspicion, at least, that it is a mere 
 arbitrary determination of the appointing officer that he does not 
 want to employ or appoint the man in question. An interpre- 
 tation that will practically nullify or bring a law into disrepute 
 is to be avoided. 
 
 It is claimed, however, that the relator, by accepting the 
 appointment tendered him, waived his right, if he had any, to an 
 absolute appointment, because it is said that any statutory or 
 even constitutional right can be waived. 
 
 I do not think that contention can prevail. 
 
 A waiver, to be effectual, must be intentional ; must be made 
 with full knowledge of the rights waived and with full knowledge 
 
362 Decisions Relating to 
 
 that .such rijihls are being waived. And no element of coercion 
 must euler into it; it the last is present, and either or both of 
 the others are absent, the waiver is not effectual. 
 
 There are cases where the acts of the parties, although without 
 knowledge of their rights, will in law constitute a waiver, as when 
 the law makes such acis a waiver, or when the other party will 
 be, or has been, placed in a disadvantageous position through such 
 action. But the general rule as to waiver is as 1 have stated. 
 
 There can be no claim here that this ease comes within arij 
 of the exceptions to the general rule. 
 
 There can be no pretense here that the relator intended to 
 waive any of his rights under the Constitution ur the statute, 
 or that he knew he was doing so. 
 
 Can we say that the relator knew the full measure of his 
 rights and knew what he was waiving? This court has been 
 embarrassed in deteriuiniug what tliey are. Plow can we say that 
 he knew and waived thein? Can we say that the element of 
 coercion was lacking here? 
 
 The applicant tor emjiloyment is not upon an e(]ual footing 
 with the eniiikiyer; he is seeking jxisilion or employmeut; hi' 
 recognizes that he is largely at the mercy of the one appointing 
 or employing, and that a refusal to take what is tendered may, 
 and probablj' will, result in depriving him of any employmeut 
 or position. 
 
 \'\'hat could the relator do in this case but accept what was 
 offered to him, go to work and rely upon the law afterwards to 
 protect him in the full measure of his rights. 
 
 To recapitulate, the naked tacts of the case are, that the 
 relator, an honorably discharged soldier, who served as such 
 during the war of tlie rebellion, passed a competitive exam- 
 ination; that as a result of such examination he received an 
 appointment in the civil service of the State; call it whatever kind 
 of appointment you please, it was an appointment, and pursuant 
 to it he held a salaried jxisition in the State service. The statute 
 (§1, chap. 821, Laws of ISOG) provides that no such person 
 "holding a position by aii]iointment or employment in the State 
 of New York * * * shnU be removed from such position or 
 employment, except for incompetency or misconduct shown, after 
 a hearing upon due notice," etc. He was removed from that posi- 
 tion because of alleged incompetency without notice and without 
 a hearing. Tt is claimed that he was not removed, but that the 
 
LiQuou Tax Law 363 
 
 appoiutiug officer declined to give liim a permanent appointment 
 because ot liis incompetency, the language of the officer bein^ 
 '• that your etliciency and capacity tor the work required 
 * * * have not been found satisfactory. * * * Your 
 employment by this department will cease on the 23d day ot 
 December, 1896." 
 
 Call it by what name you please, a refusal to make a perm;i 
 nent appointment or a cessation of employment, the fact remains 
 that the relator was deprived of the employment he was engaged 
 in under the iState for alleged incompetency, without notice or 
 opportunity to be heard. 
 
 The result seems to me not simply an evasive but a plaiu. 
 palpable violation of the statute, and nullification of the spirit 
 and intent of the Constitution. 
 
 The order should be reversed and the application of the relator 
 granted. 
 
 Order affirmed, with ten dollars costs and disbursements. 
 
 A motion having been made for a reargument of this case, the 
 following opinion was written. 
 
 Per Curia.m : In one of the opinions delivered in this case 
 it was said that " The relator was not removed from any position 
 He was properly and legally appninte.l to the pusition of special 
 agent for three months, and, at the expiration of his term, the 
 State Conuiiissioner of Excise declined to make an absolute 
 appointment. * * * We are of opinion that the relator has 
 not been removed from a position or employment within the 
 meaning of chapter 821, Laws of 1896, and, hence, that the order 
 should be affirmed, with costs." The above quotation shows wha: 
 was intended to be decided. 
 
 In the opinion referred to, treating this proceeding as an appli 
 cation of the relator to compel his absolute appointment by the 
 defendant as a special agent of the excise department of the 
 State, and not one to reinstate him in an office that had expired, 
 it was suggested that, in a proceeding by mandamus under the 
 provisions of chapter S21, Laws of ls96, the question of th( 
 business cnpacity of the relator could be tried and determined, 
 This suggestion, however, was not considered l)y the court, and 
 must be regarded merely as an opinion of the justice who 
 delivered the opinion. 
 
364 Decisions Relating to 
 
 ^^'hat this court determined was, that " the only appointment 
 which the relator received was a probationary one of three 
 months. As that expired by its own limitation, he was not 
 removed from office, and, therefore, cannot invoke cha^jter 821, 
 Laws of 1S96, which secures him from arbitrary removal during 
 the term for which he was appointed." 
 
 The motion should be denied, but, under the circumstances, 
 without costs. 
 
 All concurred, except Putnam and Heerick, JJ., dissenting. 
 
 PuTNAJi, J. (dissenting) : In my examination of the questions 
 raised by the appeal in this case, I reached the conclusion tha; 
 the relator, having been appointed by the defendant as agent, 
 for the period of three months, and having accepted such appoint 
 ment, has not been removed from the office. He has been retained 
 by the defendant during the term for which he was employed, 
 and, hence, the provisions of chapter 821, Laws of 1890, in 
 reference to removals from office, did not apply to his case. But 
 I was also of the opinion that, considering the relator's applica- 
 tion as one to compel an absolute appointment, while he was not 
 entitled to a i)eremptoiy writ of mandamus in consequence of 
 the affidavit read by the defendant, which, if the relator's appli- 
 cation was one merely for a peremptory mandamus, we were 
 compelled to regard as true, he would have been entitled to an 
 alternative writ under the jnovisions of the act of 1890, had he 
 fasked for that relief. My attention was not then called to the 
 fact that the relator did ask, in case his motion for a peremptory 
 writ of mandamus should not be granted, for an alternative writ. 
 I think, therefore, our order should be set aside, and one granted 
 modifying that of the court below so as to provide for granting 
 the prayer of the relator for an alternative writ. 
 
 Motion for reargument denied. 
 
Liquor Tax Law 365 
 
 Court of Appeals. Reported. 155 N. Y. 702. 
 
 In the Matter of the Petition of George Hilliard^ Special Deputy 
 Commissioner of Excise, Appellant, v. Annie Giesb, Respondent. 
 
 Matter of Hilliard, 25 App. Div. 222 aiBrmed. (Submitted April 
 19, ISUS; decided May 3, 1898.) 
 
 Appeal from an order of the Appellate Division of the Supreme 
 Court in the first judicial department, entered March 3, 1898, 
 reversing an order of Special Term granting an injunction. 
 
 N. N. Stranahan and Alfred B. Page for Appellant. 
 Arthur Furber and Charles L. Hoffman for Respondent. 
 Order affirmed, with costs; no opinion. All concur. 
 
 Supreme Court, New York Special Term. Reported, N. Y. L. J., June, 1898. 
 
 Henry H. Lyman v. Plymouth Social Club and American 
 
 Surety Company. 
 
 Henry H. Ly'max v. Unity League and American Surety 
 
 Company. 
 
 BiscHf'FF, Jr.^ J. : Actions by Commissioner of Excise against 
 holders of liquor tax certificates, and their sureties, to recover 
 amount of penalty stated in bond for violation of the Liquor Tax 
 Law. Motions that complaints be made more definite and certain 
 and to strike out certain allegations, also that causes of action be 
 separately stated. The allegations as to the maintenance of a 
 disorderly place in each instance, appear to be proper in form, 
 and if the defendants are entitled to further particularity as to 
 the exact days, during the period specified, upon which the premises 
 were maintained in a disorderly manner, relief should be had 
 by motion for a bill of particulars. So far as it is alleged, how 
 ever, that such maintenance of the premises was "in violation of 
 
3G6 Decisions Relating to 
 
 the Liquor Tax Law and a biench of the couditions of the bonds," 
 the aveimeuts are irrevelant as the mere statement of a con- 
 clusion of law and should be stricken out. ( Village of Cortland v. 
 Houurd, 1 App. Div. R., 131.) Where the complaints proceed 
 upon sales of liquors the facts showing that the persons to whom 
 the liquor was sold were persons to whom the defendant principal 
 was not allowed to make such sales should be stated, and in these 
 instances the statement that the sales were ''in violation of"' the 
 particular restrictions should be stricken out. (Case last cited.) 
 I can not hold that the several alleged violations of the Liquor 
 Law, as set forth in the complaint, constitute separate causes of 
 action. But one cause of action is alleged — the breach of the 
 condition of the bond-^-and but one amount is recoverable by the 
 plaintiflE in these actions for one or for all of these violations, 
 and the presence of several cumulative grounds for the breach of 
 the condition of the bond does not render the complaint severable 
 into more than one cause of action; and so it was ruled in The 
 State V. Dai in (35 Mo., 400), which was an action to recover upon 
 a sheriff's bond, the complaint alleging several breaelies thereof 
 and in 7 /s7,c v. Tank (r2 Wis., 276), where the plaintiff sought 
 to recover for breach of a contract, alleging that the contract was 
 broken in two respects and demanding damages for each breach. 
 
 Jlotion granted, so far as indicated, without costs. 
 
 Supreme Court, Onondaga Special Term, June, 1898. Reported. 23 Misc. 710. 
 
 Matter of the Petition of Henry H. Lyman, State Commissioner 
 of Excise, for an Order Revoking and Canceling the Liquor Tax 
 Certificate of Charles A. Gillett. 
 
 1. Liquor Tax Law— Application— False statement as to the number of 
 dwellings for which consents must be filed. 
 The Liquor Tax Law (Laws of 1896, chap. 112, § 17, subd, 8, as amended 
 by Laws of 1S97, chap. 312), does not require an applicant to state how 
 many buildings, used exclusively as dwellings, are within the prescribed 
 statutory distance of the proposed saloon and for which consents must be 
 filed, and hence a false statement In the application as to the number of 
 Euch buildings affords no ground for a revocation of the certificate, as the 
 statement Is not "material." 
 
Liquor Tax Law 367 
 
 2. Same — 
 
 A statement, in such an application, that the applicant may "lawfully 
 carry on such traffic in liquors on such premises" does not relate to the 
 subject of chvolling-houses, but refers to the provisions of section 24 of the 
 statute, prohibiting: traffic in certain places. 
 
 3. Same — Review of determination of county treasurer — Former adjudica- 
 
 tion. 
 
 The court has power, in view of subdivision 2 of section 28 of the 
 statute, to review and correct the action of a county treasurer in issuing 
 a liquor tax (.ei-tificate to a person who. as matter of fact, did not obtam 
 a sufficient rumber c£ necessary consents of the owners of dwelling- 
 houses, and hence, while luis issue should in the first instance be deter- 
 mined by the county t; casurer, his conclusion, although reached after a 
 protest by the civners .if the bLiMings, has not the force of a loraier 
 determination, available as a bar. 
 
 Application for an order revoking and canceling a liquor tax 
 certificate. 
 
 Mead & Slranahan, for application. 
 
 Walter Welch, opposed. 
 
 HiscocK, J. : The holder of the certificate made application 
 therefor under subdivision 1, section 11, Liquor Tax Law, in the 
 usual" form to the county treasurer of Onondaga county, who 
 granted the same. 
 
 The ground upon which it is asked to have the certificate 
 revoked is that there were seven buildings used exclusively for 
 dwellings within the distance prescribed by subdivision 8, section 
 17, of said law, while the applicant stated in his application that 
 there were only three, and filed under said subdivision 8 the 
 consf nts for only three. 
 
 It is pretty clear that the four additional buildings enumerated 
 by the petitioner were all used as dwelling-houses within the 
 meaning of the statute, as claimed by him. It could not have 
 been the intention of the statute that a dwelling-house should 
 lose its character and become a boarding-house or public place of 
 business, because of such insignificant and incidental facts as 
 were developed by the evidence in relation to the Newell and 
 Woodward houses. The use of the Morris house in part for a 
 physician's office had been discontinued before the certificate in 
 question was granted. 
 
368 Decisions Kelating to 
 
 Assuming, therefore, that there were seven houses within the 
 meaning of subdivision 8, section 17; that the applicant's state- 
 ment that there were three was false, and that he did not have and 
 file the necessary consents to entitle him to the certificate, we 
 reach the question whether the petitioner is entitled to have the 
 same canceled as requested. 
 
 The application is made, of course, under section 28, of the 
 Liquor Tax Law, and petitioner urges as Iwo grounds for the 
 cancellation, first, that a material statement in the application, 
 viz., that relating to the number of dwelling-houses above dis- 
 cussed, was false; and, second, that the applicant is not entitled 
 to hold such certificate by reason of his failure to file the 
 necessary consents. 
 
 T do not think that the a])plication can be granted upon the 
 first ground. The only "material" statement for whose falsity 
 the certificate could be revoked would be one which the applicant 
 was required by law to make. The official charged with the duty 
 of issuing certificates would not have the power by inserting 
 questions outside of those authorized by the statute to lay the 
 possible foundation for false statements and a subsequent 
 revocation of the certificate. There is nothing in the statute 
 which provides for a statement by the applicant of the number 
 of dwellings for which consents must be filed. He is simply 
 required to file the consents and whether they are suflicieht in 
 number is a question for determination very likely, as a matter 
 of convenience, to be aided, but not controlled, by his statements. 
 People ex rel. Anderson v. Hoag, 11 App. Div. 74. 
 
 Neither docs the statement in the application that the applicant 
 may "lawfully carry on such traffic in liquors on such premises," 
 relate to this subject of dwelling-houses. That manifestly refers 
 to the provisions of section 24, prohibiting the traffic in liquors 
 in certain places. 
 
 Upon the second ground, however, that the applicant was not 
 and is not entitled to the certificate by reason of failure to obtaiB 
 the necessary consents, the relief asked for should be granted 
 unless one of the contentions of the defendant now to be 
 considered is well founded. 
 
 It ajipears that after the application for the certificate was 
 presented to the county treasurer a protest was also presented to 
 him in behalf of the owners of the dwelling-houses in question 
 raising the same issue of lack of necessary consents which is 
 
Liquor Tax Law 369 
 
 involved in this proceeding. Thereafter the county treasurer, 
 notwithstanding such remonstrance, issued the certificate, and it 
 is claimed that his action was judicial and a bar to this 
 proceeding. 
 
 1 think that under the provisions of section 19, as amended by 
 chapter 312, Laws of 1897, the county treasurer was called upon 
 to determine as a question of fact whether the necessary consents 
 had been obtained; that as before suggested this was not one of 
 the matters which the application was required to disclose upon 
 its face, and that even if it did purport to do so the county 
 treasurer was not bound thereby. This provision was not one 
 which the treasurer was required or permitted to disregard to the 
 end of issuing a certificate under the clause requiring him to so 
 issue when the application " does not show on the face thereof 
 that the applicant is prohibited from trafficking in liquor." 
 
 But all this being so, the question still remains whether this 
 court in this proceeding cannot in effect review and correct the 
 act of the treasurer in issuing a certificate when he should not 
 have done so. Ordinarily such review by anybody at least who 
 was legally a party to the proceedings would be by certiorari as 
 suggested by defendant's counsel. But the Legislature in treat 
 ing this subject, of course had the power to provide for what 
 should in effect be a review of the acts of a treasurer by a 
 proceeding other than certiorari, and at the instance of persons 
 who would not have anj standing to institute the latter. It 
 seems to have done so. Subdivision 2, section 28, seems to have 
 provided in the most comprehensive language possible that " at 
 any time " after a certificate has been granted " any citizen of 
 the State " may institute a proceeding such as this to have 
 revoked a certificate upon the broad general ground, in addition 
 to those specifically enumerated, that the holder " was not 
 entitled to receive or is not entitled * * * for any » » » 
 reason to hold such certificate." It is the general rule that 
 onlj parties and privies to a determination are bound by it. 
 and independent of .the language used, specifically combatting 
 such an intention, it would be somewhat anomalous for the 
 statute to give " any citizen " the right to question the validity 
 of au issue of a certificate and then bind him by a decision of 
 an officer in a proceeding of which very probably he never heard 
 until after its conclusion. 
 
 The case of People ex rel. Anderson v. Hoag, cited by defend- 
 24 
 
370 Decisions Relating to 
 
 ant's counsel, docs not seem to conflict with this holding. That 
 proceeding was by ccrUordri under other pi-ovisions than thos' 
 quoted (if under this statute at all), and by the applicant, wno, 
 of course, was a party to the proceeding before the treasurer. 
 Under the wording of the statute in that proceeding the court 
 applied the ordinary rule of determination in bar. 
 
 These views lead to an oider canceling and revoking the certifi 
 cate in question. 
 
 Costs are allowed to the petitioner to the amount of disburse- 
 ments actually incurred in the proceeding, including referee's 
 fees to be taxed by the clerk and also $50 counsel fee. 
 
 Ordered accordinglv- 
 
 Supreme Court, Amsterdam Chambers, June, 1898. Reported. 24 Misc. 1. 
 
 In the Matter of the A])plicrition of DA\in D. Steenburgh et al., 
 for a ^"^'rit of Certiorari, etc. 
 
 Liquor Tax Law — Tlie commissioner can not arbitrarily fix the population 
 of a village. 
 Where there has been no State, nor "United States, census taken in a 
 village, or any enumeration of its population made, under the Liquor Tax 
 Law (Laws of 1S96, chap. 112), by the State Excise Commissioner, the 
 fact that he has "no doubt" that its population exceeds twelve hundred 
 can not justify the action of a county treasurer in exactirg $75 from a 
 village applicant for a liquor tax certificate, and the proper fee is $50. 
 The provisions of subdivision 7 of section 11 of th^ statute, authorizing 
 the commissioner to make an enumeration "if the commissioner has any 
 doubt as to the number of the population as affecting the amount of the 
 excise tax assessed therein," merely mean that, if he has any doubt about 
 the population, he may make an enumeration, and does not mean that he, 
 in the absence of such an enumeration, may arbitrarily fix the population 
 and the consequent tax. 
 
 Certiorari to rcN lew the action of a county treasurer in refus- 
 ing a certihcate, permitiing the relator to engage in the traffic 
 of liquors. 
 
 J. W. Atkinson, for petitioner. 
 
 Nussbaum & Coughlin, for respondent. 
 
Liquor Tax Law ii7l 
 
 Stover, J. Writ of certiorari to review the action of the 
 county treasurer iu refusing a certificate, permitting the relator 
 to engage in the traffic of liquors. 
 
 The relator tendered to the county treasurer the sum of $50, 
 and requested the issuance to him of a certificate. The certificate 
 was refused, upon the ground that the relator should have 
 tendered $75, instead of |50. 
 
 There is no contention that the population of the village of 
 Waterford, the place within which the relator proposed to carry 
 on the business, has been fixed, either by a State census or a 
 United States census ; and no enumeracion of the village has been 
 made by the Commissioner of Excise under subdivision 7 of 
 section 11 of the Liquor Tax Law. 
 
 By subdivision 2 of section 11 of the Liquor Tax Law, it is 
 provided that the tax for carrying on the business in a city or 
 village having at the last State census a population of less than 
 5,000, but more than 1,200, shall be |75. By other provisions of 
 the same section, a graded license, based upon the population a.s 
 ascertained by the last State census, is provided for. And it is 
 further provided that " in any other place " the tax shall be |50. 
 "Any other place," as used in this connection, refers to a place, 
 the population of which has not been fixed by a State census. 
 By subdivision 7 of section 11, it is provided: " When the popula- 
 tion of a city or village is not shown by the last State census, it 
 shall be determined for the purposes of this act by the last United 
 States census, and if not shown by reason of the incorporation of 
 a new city or village, or by reason of not having been separately 
 enumerated, the state commissioner of excise is authorized and 
 directed to cause an enumeration of the inhabitants to be taken 
 in such city or village, if the commissioner has any doubt as to 
 the number of the population as affecting the amount of the 
 excise tax assessed therein." 
 
 It is conceded upon the argument of this motion that there has 
 been neither a State nor United States census of the village of 
 Waterford, and that the commissioner of excise has not made an 
 enumeration of said Village. But the claim is made that the 
 commissioner had no doubt as to the population of the village of 
 Waterford, and, therefore, he had a right to fix the sum to be paid 
 for a license, at |75, as he had no doubt that the population 
 exceeded 1,200. 
 
 It is impossible for me to bring my mind to a concurrence in this 
 
37L' Decisions Kulating to 
 
 interpretation of the stutiite. The object of the statute was to 
 classify the cities, villages, hamlets and towns of the State, so 
 that any person desiring to obtain a certificate permitting him to 
 engage in business, might know the amount that he would be 
 required to pay; and this was not to be left to chance or the 
 arbitrary determination of any individual. It was to be based; 
 first upon the State census; in tJio absence of a State census, upon 
 a United States census; and in the absence of both, a general 
 classification w;is made, viz.: "any other place"; that is, a place 
 where there had not been a census. This classification was 
 complete, and except in instances where the commissioner might 
 have doubt as to the correctness of this classification, because 
 there had been a new incorporation or because there had never 
 been a separate enumeration, he was permitted to make a new 
 census, and to take an enumeration of the inhabitants. If, upon 
 such enumeration, it appeared that the population was greater or 
 less, whicliever it might be, the enumeration taken by the com- 
 missioner was to control until there was a census talien by the 
 State or Federal authorities. The law nowhere gives the 
 commissioner power to classily, or to fix th6 tax for a certificate 
 If it can be said that the commissioner may, wherever he has 
 doubt as to the number of inhabitants in a locality in which a 
 census has not lieen taken, change the amount of tax which might 
 otherwise be paid, he might as well say he had no doubt there 
 were over 5,000 people in a locality as to say he had no doubt 
 there were over 1,200; because, if this interpretation is to prevail, 
 the statute has left him as the ultimate arbiter as to the number 
 of inhabitants within such localities. I can not believe that this 
 was the intention of the law, for it would absolutely prevent 
 any review of the action of the conimissioner when he hns once 
 acted. How can it be determined that he had no doubt? Who 
 is to pass upon the question, and upon what is the review to be 
 based? Under well-known rules of interpretation, where dis- 
 cretion is left to an oflicial, and that has been once exercised, 
 there is no ])ower to review it. Here, the commissioner, by simph 
 stating that through his mental operations,, he had no doubt that 
 there were a larger number of inhabitants than was contended 
 for by the applicant, and he, therefore, fixed the tax at the larger 
 amount, would completely foreclose any review of his action. 
 For it will be noticed that the statute does not make it depend 
 upon the fact as to whether there was or was not a larger number, 
 
Liquor Tax Law 373 
 
 but as to whether he had any doubt. But a "urther inspection 
 will show that that doubt which is to influence his action, is only 
 to intluence his action in the taking of a census or enumeration. 
 If he has any doubt, he may have the inhabitants enumerated, but 
 the statute nowhere gives him power to go beyond tliis and fix 
 the tax which ought to be paid, in the absence of an enumeration. 
 He may have no doubt as to the fact, and he is not called upon 
 to explain the retison why he has an enumeration made, and so 
 far as the statute gives him power in making the enumeration, 
 he can not be interfered with. If he has doubt, he may have the 
 enumeration made, and if, upon that enumeration, the population 
 warrants, the tax may be collected accordingly. But this is as 
 far as his discretion can go. He has no right, in the absence of 
 an enumeration, to fix the tax, or to refuse a certificate to one 
 who would otherwise be entitled to it. 
 
 This disposes of the only question that was at issue in the 
 case, and it follows that the applicant is entitled to the certificate 
 demanded. 
 
 Ordered accordingly. 
 
 Court of Appeals, June, 1898. Reported. 156 N. Y. 407. 
 
 The People of the State op New York ex rel. Edwin G. B. 
 Miller, Appellant, v. Henry H. Lyman, as State Commissioner 
 •^f Excise of the State of New York, Respondent. 
 
 1. Liquor Tax Law — Assignment of certificate as security — Right of 
 
 assignee to rebate defeasible by violation of law by assignor. 
 If a liquor tax certificate, assigned by tlie original owner as collateral 
 security, by an instrument empowering the assignee to surrender the 
 certificate and receive the rebate thereon, is surrendered by the assignee 
 and a rebate receipt issued to him, the right to payment of the rebate is 
 suspended, by force of section 25 of the Liquor Tax Law (L. 1896, chap. 
 112, amd. L. 1S97, chap. 312), by the arrest of the original owner of the 
 certificate for a violation of that law, within thirty days from the date of 
 the rebate receipt. 
 
 2. Violation of law by copartnership. 
 
 A violation of the Liquor Tax Law by one of a firm holding a certificate 
 is a violation by the firm and subjects it to the restrictions upon the right 
 of rebate prescribed by section 25, through the prosecution of the offending 
 partner. 
 
374 Decisions ]{klating to 
 
 3. Certificate issued to firm assigned as security — Right of assignee to 
 rebate, suspended by violation of law by member of firrr. 
 
 If a liquor tax certificate, issued to a firm and assigned as collateral 
 security, is surrendered by the assignee, under a power given by the 
 assignment, and a rebate receipt is issued to him, the arrest, within thirty 
 days thereafter, of one of the firm tor a violation of the J^iquor Tax Law 
 suspends the right of the assignee to the rebate. 
 
 People ex rel. Miller v. Lyman, 27 App. Div. 527, affirmed. 
 
 {Argued June 13, 1X9S: decided June 24, 1898.) 
 
 ApiiiAL from an order ol' the Aiipcllalt' l)i\ isioii o! the Supreme 
 Court in the fourth jiidieial (lep.-irliiienl, entered Ajii-il .">, LSUS, 
 reversing an order ol' Sjjeeial Teiiu yranling a jicrciiiplovy writ 
 of mandamus. 
 
 The I'aets, so far as laalerial, are staled in I he opinion. 
 
 Tracy (■. Jiiikir I'nv ap]iellant. Wlien llie intere.sts of a holder 
 in a liquor tax cei-tilicale have lieeii duly assijiiicd tor value to an 
 innocent third l)arty, and that certi'flcate has heen surrendered 
 and a duplieaie rebale receipt issued to such assij;nee, hi' becomes 
 the owner aiul holder tlieredl', ,iiid unless he is indicted within 
 thirty days the said eommissionei- n( excise has no right what- 
 ever to retain the rebate moneys, and refuse to issue (lie orders 
 for the |jayiiient thereof (o the ])roper city and State oflBcers. 
 (I}hi<k oil Intoxiealiug JJ(|iiors, § ISS ; ],. ISDii, ch. 112, §1*7. as 
 amended by L. 1S07, ch. 111.!; lUai/cr of Jciiiiri/, 19 Misc. Reji. 210; 
 7V/7r.s- V. MutUiiKa. 19 Misc. Rep. ltd; Hcriudii v. (loitrlsnii, IS Misc. 
 Kep. G04.) The iiidictineut of a iiieiulxM- of a <-orporation or 
 of a copartnershij) holding- a license or liquor tax certilicate. 
 within thirty d.iys after it has bf eii surrendered and the duplicate 
 rebate leceipt issued to such firm, is not an indictiiieut of " th." 
 person surrendering such cerlificale," within the meaning of the 
 provisions of section 25 of the Excise Law, in reference to the 
 surrender of such certificales and the payment of rebate moneys. 
 (Excise Law, § 2:',, subds. 5, 7; Bank of Hiiffalo v. Thompao)!. 121 
 N. Y. 280.) 
 
 Royal R. Hcolt for i-(>s)ion(leii(. The State commissioner con- 
 tends that, as Henry Stauber was indicted and arrested within 
 thirty days from the date of the receipt of the tax certificate by 
 him, said commissioner, the petition for surrender should not 
 be granted until the final defermiuation of such proceeding or 
 
. Liquor Tax Law 375 
 
 action. (Liquor Tax Law, §25; Black on Intoxicating Liquors, 
 § 188; 50 N. Y. Supp. 977; Matter of Johnson, 18 Misc. Rep. 498; 
 Muttvr of Brudhij, 22 Misc. Rep. 301; People ex rel. v. Murray, 149 
 N. Y. oG7; People v. Durante, 19 App. Div. 292; Mutter of Living 
 ston, 24 App. Div. 51; Liquor Tax Law, §34, subd. 2; Bagley v. 
 Hamilton, 25 App. Div. 428.) The assignment to Miller was only 
 an equitable assignment, and his title was not perrected. (Liquor 
 Tax Law, § 27.) 
 
 Gray, J. This appeal presents a question of construction of 
 certain provisions ot chapter 112 of the Laws of 181)6, as amended 
 by chapter 312 of the Laws of 1897; being acts pnsscd by the 
 Legislature in relation to the traffic in liquors within this Slate. 
 
 In May, 1897, the excise department of the State issued to the 
 firm of Floss & Stauber a liquor tax certificate, authorizing them 
 to sell, in the city of Buffalo, ales, wines, beer and spirituou? 
 liquors ; a payment being then made by them of the sum of |500, 
 as the amount of the tax assessed under the statute. I'rior to 
 their application for this certificate and by an instrument, dated 
 April 30th, 1897, which recited the fact of the application having 
 been made and that Miller, this relator, had advanced certain 
 moneys to enable them to pay the tax required, they assigned to 
 him their rights under the tax certificate, including the right to 
 surrender and cancel the same and to receive any moneys due 
 upon such surrender and cancellation. On Jiily 1st, 1S!»7, the 
 relator made application, as the assignee and the attorney in fact 
 of Floss & Stauber, to the deputy excise commissioner to sur- 
 render the said tax certificate and he received a receipt for the 
 same as for cancellation ; in which was stated the amount of the 
 rebate payable upon such surrender. On July 19th, 1897, Henry 
 Stauber, one of the firm of Floss & Stauber, was indicted 
 for a violation of the statute on July 11th, 1897, and 
 on July 21st, 1897, was arrested and upon being arraigned on 
 July 29th, following, entered a plea of not guilty. The trial 
 under the indictment had not been had at the commencement 
 of this proceeding. The proceeding was instituted, upon the 
 refusal of the State commissioner of excise, respondent herein, to 
 pay the excise tax rebate, to obtain a peremptory writ of man 
 damns requiring him to do so. The answej- interposed by the 
 commissioner set up the violation by Stauber of the Liquor Tax 
 Law and his arrest therefor and claimed that by reason thereof 
 
;j7G Decisions Relating to 
 
 the petitioner and tlie said Floss & Htauber were not entitled to the 
 orders for the payment of the excise tax rebate. 
 
 At the Special Term of the Supreme Court the application for 
 the writ was granted; but the order granting the same was 
 ■reversed by the Appellate Division and the writ was dismissed. 
 It was held at the Appellate Division that the violation of the 
 Liquor Tax Law by one of the firm of Floss & Stauber, within 
 thirty days after the surrender of the liquor tax certificate, 
 deprived the assignee thereof of the right to the rebate. The 
 proposition thus decided presents the principal question for our 
 review. 
 
 The statute, of which some ol the provisions are thus brought 
 up for consideration, created a general and comprehensive system 
 for the regulation and taxation of the traffic in liquors within 
 this State. It prescribed the conditions under which the same 
 may be carried on and provided for a supervision by a State 
 commissioner of excise, who performs the duties pertaining to 
 his offlce with the aid of special deputies and agents in the various 
 counties. The provisions of the statute go much beyond those 
 of former excise laws ; in that they permit the holder of a liquor 
 tax certificate to surrender the same for cancellation and to be 
 allowed a rebate upon the tax paid therefor, and they permit him 
 to make a voluntary sale, assignment or transfer thereof durin;; 
 the time for which it was granted. These new provisions lend 
 a commercial value to the certificate which is issued, in addi- 
 tion to the privilege conferred of traflicking in liquors; for the 
 holder not only is able to receive a rebate upon the amount 
 of the tax paid, if he desires to discontinue the liquor business, 
 but the certificate is valuable to him as a means of raising 
 money by its sale or pledge. In the system, however, created 
 by the statute, conditions are imposed which qualify the absolute 
 right to receive payment of the rebate upon the surrender of the 
 certificate. The particular condition now demanding our atten- 
 tion in this case is as follows, viz.: "If within thirty days from 
 the date of the receipt of such certificate by the State Commis- 
 sioner of Excise, the person surrendering such certificate shall 
 be arrested or indicted for a violation of the Liquor Tax Law, or 
 proceedings shall be instituted for the cancellation of such 
 certificate, or an action shall be commenced against liim for 
 penalties, such petition shall not be granted until the final deter- 
 mination of such proceedings or action"; etc. (Sec. 25.) The 
 
Liquor Tax Law 377 
 
 clause, from wliich I have quoted, continues by providing that n. 
 conviction cancels the certificate and forfeits the rebate. If, iu 
 the present case, the transaction between Floss & Stauber and 
 Miller, the petitioner, had been that of an actual sale of the 
 certificate to the latter, the question of his right to receive pay- 
 ment of the rebate upon his surrender thereof, as affected by the 
 subsequent proceedings against Stauber for a violation of the 
 law, might be a very different one. Th*e transaction in question, 
 however, was not that of a sale, but that of an assignment to 
 secure Miller in advancing to Floss & Stauber the moneys with 
 which to pay the tax. Instead, therefore, of occupying the 
 situation of a purchaser of the certiflcnte, with the attendant right 
 to carry on the business for w"liich it was issued, in which case, by 
 the terms of the statute, he would stand as an original applicant 
 for and original owner of the-" certificate, his situation was that 
 merely of an assignee thereof, who held it as collateral security 
 for the repayment of his advances. He, therefore, was subject 
 to the same conditions which attended the ownership of his 
 assignors, to whom the certificate had been issued. On July 
 1st, 1897, the time when the petitioner Miller made application 
 to surrender the certificate and to receive the rebate due thereon, 
 Floss & Stauber stood towards the State Commissioner of Excise 
 as the parties holding the certificate and trafficking thereunder, 
 and upon the surrender thereof, though made by a party appearing 
 as their assignee r-v attorney in fact, with power to surrender and 
 receive payment of the rebate, the right with respect to such a 
 payment was no greater than was possessed by Floss & Staube'*. 
 The rights conferred by the possession of the certificate were 
 measured by the statute. The statute created a new and market- 
 able privilege; subject, however, to restrictions and conditions 
 affecting both its exercise and its value. The language of the 
 statute above referred to is unmistakable in forfeiting the rebate, 
 where, within thirty days from the date of the receipt of the 
 certificate, the person surrendering it shall be arrested for a 
 violation of the Liquor Tax Law. Now the "person surrendering 
 the certificate"' in the present case was not, in a legal sense, 
 Miller; notwithstanding that by the instrument of assignmer.t 
 he was invested with the power to surrender it and to recel\e 
 payment of the rebate. There having been no sale of the certificate, 
 Floss & Stauber, to whom it was issued, were the parties to be 
 
;!7S DionsToxs Kelattng' to 
 
 aft'ected l).v tlic cMiiccllalioii. As a licciis.- si^mted to traffic in 
 li(|uors, all i-ii^lils or privilc^^^cs jicrlaining tliercto were made to 
 deiK'iid upon Uic status of the holder under the statute. It seeras 
 to me very plain that Miller, as assitjnee, took the certificate 
 subject to the condilions and restrictions, with which the holding 
 of the same by Floss & Stauber was invested and, thus, when he 
 elected to surrender the same in order to receive the rebate due 
 thereon, his right to the payment was conditional and dependent 
 upon tlie completion of the thirty days thereafter without a 
 violation oF the law by Floss & Stauber. 
 
 I am unable to see that the argument of the learned counsel 
 for the aiijiellant, that the proviso at the end of section '27. to the 
 effect that no sale, assiiinment or transfer of a liquor tax 
 certificate shall be made, except in accordance with the provisions 
 of the Liquor Tax Law, nor permitted by any holder of a 
 certificate who shall be convicted, or be under an indictment, 
 etc.. Constitutes the sole limitation upon the right of the holder 
 of the cei-tificate l"o sell anil transfer it. is of any ayail. 
 That ]iroviso was intended as a restriction upon the right accorded 
 by the statute to the holdei' to sell or transfer liquor tax 
 certificates. It in nowise impairs tlu^ effect of the conditional 
 clause in seciion 2.'i, heretofoi-e refei-red to. If the petitioner was 
 the transfeiee by purchase, as before suggested, his position might 
 be a very different one under the act. 
 
 T think the Appellate Division was clearly right in the view of 
 the question discussed; as it was, also, ii]ion the question of 
 whether the indictment of a member of the partnership of Floss 
 cSc Stauber was an indictmeni of the jierson surrendering the 
 certificate, within the meaning of the )irovisi(ms of section 2."). 
 The violation by Stauber of the lOxcise Law, for which he was 
 sul)se((i!eiitlv arrested and indicted, allVcleil the partnership itself 
 and made it amenable to the iirovisions of the law. The partner 
 shiji could only act through the agency of its members and it 
 would be absurd to hold that where, in the conduct of the 
 business, one of them had violated the st.atute, the copartnership 
 would not incur the attendant ]>enalfy. The copartnership may 
 well be .■) legal enlily; but that by no means imports that, in 
 order to cancel its license to do business under the law, it must 
 be indicted as such. A violation of the statute by one of the 
 copartners is, in legal effect, a violation by the copartnership and 
 
Liquor Tax Law 379 
 
 subjects it to the forfeitiu-e ot the right to the rebate, prescribed 
 by section 25. 
 
 The order should be afiflrmed^ with costs. 
 
 All concur, except Parker, Vh. J., and Haight, J., dissenting. 
 
 Order affirmed. 
 
 Court of Appeals. Reported. 156 N. Y. 691. 
 
 In the Matter of the Petition of Frank Place, Eespondent, for an 
 Order Revoking Liquor Tax Certificate of Frank Matty 
 Appellant. 
 
 Matter of Place, 27 App. Div. 501, aflirmed. (Argued June 7, 
 1898; decided June 21, 1898.) 
 
 Appeal from an order of the Appellate Division of the Supreme 
 Court in the fourth judicial department, entered April 6, 1898, 
 reversing an order of Special Term dismissing the above entitled 
 proceedings, and revoking the liquor tax certificate held by 
 appellant. 
 
 James Devine, for ajJiJellant. 
 
 S. B. ]Mead for respondent. 
 
 Order affirmed, with costs; no opinion. 
 
 All cdncur. exce]it O'Brien, J., absent. 
 
 Second Appellate Department, July, 1898. Reported. 32 App. Div. 272. 
 
 Anchor Bi!Ewin(; Company, Appellant, v. Bernard Burns, 
 Defendant, Impleaded with George Ringler & Co., Respondent. 
 
 Liquor tax certificate — Assignment thereof in advance of its issue — Right 
 of a subsequent assignee who advances the cost thereof — City Court 
 of Yonkers — Action therein, how regarded in view of its want of 
 equitable jurisdiction. 
 
 A brewing company which has advanced money to enable a person to 
 take out a liquor tax certificate for the year beginning May, 1896, and to 
 whom the licensee (the holder of the certificate) has given an assignment 
 in the form of a chattel mortgage, by which he sells and assigns "the tax 
 certificate issued to me * * * for the premises known as 48 St, Mary 
 
•'>i^l' Decisions Relating to 
 
 street, Yonkers, N. Y., and also any and every renewal or subsequent 
 license or tax certificate which may be hereafter issued to me * * » 
 for said premises," is not entitled to a liquor tax certificate issued to the 
 same person lor the succeeding yrar beginning May, 1897, as against a 
 party who has advanced the money necessary to secure such last- 
 mentioned certificate and has taken an assignment thereof as security for 
 ■ the loan thus made. 
 
 Senihle, that as the City Court of Yonkers has no jurisdiction of equit- 
 able actions, an action brought therein by the first assignee to recover the 
 last-mentioneij certificate must be regarded as an action at law in replevin, 
 in which form of action no recovery could be had, first, because the second 
 certificate not being in existence at the time of the execution of the 
 chattel mortgage, that instrument created no lien thereon, but simply 
 operated as a contract to give a lien, only effectual in equity as between 
 the parties when the property came into existence, provided no rights of 
 creditors or innocent third parties intervened; second, because the tax 
 certificate being not a chattel, but a chose in action, the recovery of the 
 paper itself would be of no advantage to the plaintiff unless accompanied 
 by an assignment thereof, which latter instrument the City Court of 
 Yonkers could not compel the debtor to execute. 
 
 -Vii'EAL bv the plaintiff, tin- Anchor Brewing Company, from a 
 final jinljjmenl of the City (N»urt of Yonkers in favor of the 
 defendant (ieni-nv Riimlei- & Co., entered in the office of the clerk 
 of the (Mty Court of Yonkers on the 3d day of May, 1S9S, upon 
 the decision of the jiidii'e of the City Court of Yonkers rendered 
 after a trial at a term of said court bcdore the court without a jury, 
 dismissing the plaintill's complaint upon the merits and also from 
 an interlocutory judgment enteivd in siiid clerk's oirice on the 15th 
 day of January, ls;)S, overruling the plaintiff's demurrer to the 
 answer of the defendant George Kingler & Co. 
 
 1. ■'. lieaudrias. for the ajipellant. 
 
 P. X. Donogline, for the respondent. 
 
 CuLLEx, J. In April, ISfii;, the plaintiff lent the defendant 
 Burns pOO, to enable the latter to take out a liquor tax certifi- 
 cate, and Burns executed an assignment to the plaintiff in the 
 form of a chattel mortgage, whereby he sold and assigned " the 
 tax certificate issued to me * * * for the premises known 
 as 48 St. Mary Street, Yonkers, N. Y., and also any and every 
 renewal, or subsequent license or tax certificate, which may be 
 hereafter issued to me * • * for said premises." This cer- 
 
Liquor Tax Law 381 
 
 tiflcate expired in May, 1897. In April, 1897, tlie defendant 
 Eingler & Co. lent Burns the sum of |350 to enable him to take 
 out a new license for the year running from May, 1897, to May, 
 1898, and Burns assigned such certificate to the defendant Ringler 
 & Co. as security for the loan. Burns paid neither the plaintiff 
 nor Eingler .^ Co. In November, 1897, the plaintiff brought this 
 action against the defendant Burns to recover possession of the 
 liquor tax certificate for the year 1897 to 1898, or its value (|150) , 
 in case return could not be had. On motion, Eingler & Co. were 
 made parties defendant. The action was tried before the city 
 judge of Yonkers without a jury, and from his decision in favor 
 of the defendants this appeal is taken. 
 
 We are of the opinion that the action cannot be maintained. 
 It is strictly an action at law in replevin, and must be considered 
 as such, for the City Court of Yonkers has no jurisdiction of 
 equitable actions. At the time of the execution of the mortfj:age 
 by Burns to the plaintiff, the license, or tax certificate, for the 
 year 1897 to 1S98 was not in existence. The mortgage did not, 
 at the time of its execution, create a lien on the certificate, 
 because that was not in esse; at most, it operated as a contract 
 to give a lien. This is effectual in equity, as between the parties, 
 when the property comes into existence and no rights of creditors 
 or innocent third parties intervene. (Krihl)S v. Alfr.rd, 120 N. Y. 
 519; Deelcij v. Dicight, 132 id. 59.) We do not understand, how- 
 ever, that such a contract gives any legal title or lien, cognizable 
 in a court of law, as the foundation of a cause of action {Hale v. 
 Omaha National Bank, 49 N. Y. 626) ; though, unquestionably, 
 it could be set up as a defense, since equitable defenses are, under 
 the present system, admissable in legal actions.. {McCaffi-cy v. 
 Woodin, 65 N. Y. 459.) In Hale v. Omaha National Bank, as in 
 the present case, the lien sought to be enforced was on subse- 
 quently acquired property. There Judge Allen said : " Very 
 likely the action cannot be maintained as a common-law action 
 of trover, although it is not necessary to pass upon that question. 
 That action can only be brought by one having the legal title, 
 either as a special or a general owner, one having the legal right 
 to the possession." But there is a further difficulty in this case. 
 The tax certificate is not a chattel but a chose in action. {Nih:s 
 V. Mathusa, 20 App. Div. 483.) The recovery of the piece of 
 paper on which the license is written would be of no advantage 
 to the plaintiff. In its complaint it alleges a demand on the 
 
'!1^2 DiCCISIOXS IlELATING TO 
 
 defeudunt Burns for an assi;'niii('nt of the ccrtiflcate and Burns' 
 refusal. The (Jily Court of Youkcrs has no power to compel 
 liurns to execute any assignuiput. Tlieiefore, even if an actioD 
 of replevin would lie in the case of an e(iiiitaljle lien on a chattel, 
 it cannot be maintained in the case of a chose in action. 
 
 We are' further of opinion that the decision of the city judge 
 was correct on the merits. Equity will only enforce a lien ou 
 subsequently acquired piroperty, where superior equities of third 
 parties have not intervened. In this case as Eingler & Co 
 advanced the very money which paid for the tax license or cer- 
 tificate in suit, their equity was jiaramount to that of the 
 plaintiff's. 
 
 The judgment appealed from should be affirmed, with costs. 
 
 All concurred, excejrt Hatch, J., absent. 
 Judgmejit aflBrmed, with costs. 
 
 Second Appellate Department, July, 1898. Reported. 32 App. DIv. S54. 
 
 Edward Gixg. Resitondent. v. John Sherry, as County Treasurer 
 of Suffolk County, Appellant. 
 
 Intoxicating liquor — Payment of a rebate receipt, how enforced, 
 
 A rebate receipt given by a county treasurer to repay an excess of pay- 
 ment exacted, and made, for a liquor tax certificate, can be enforced only 
 in tlie manner prescribed by section 25 of chapter 112 of the Laws of 1S96, 
 as amended by chapter 312 of the Laws of 1897. 
 
 Appeal by the defendant, John Sherry, as county treasurer of 
 Suffolk county, from a judgment of the Supreme Court in favor 
 of the plaintiff, entered in the office of the clerk of the county of 
 Suffolk on the 2nth day of November, isiOT, upon the decision of 
 (he court rendered after a trial before the court without a jury 
 at the Suffolk Trial Term. 
 
 John M. Ward, for the appellant. 
 
 Timothy M. Grifflng, for the respondent. 
 
Liquor Tax Law 383 
 
 WooDWARn, J.: On or about the 1st day of May, lS!)fi, Albert 
 M. Darling, then county treasurer of Suffolk county, issued 
 liquor tax certificate Xo. 20251 to the plaintiff, receiving in pay- 
 ment therefor the sum of |200. On the tenth day of July — 
 plaintifiE having, in the meantime discovered that, under the 
 provisions of the Liquor Tax Law, he was required to pay only 
 $100 for his tax certificate — a notice was served upon the county 
 treasurer of Suffolk county to retain all of the money paid td him, 
 in excess of |l(l(l, for the said tax certificate, and to return thi^ 
 same to the plaintiff'. Subsequently, and on the 5th day of 
 February, 1S97, the defendant in this action, who had, in the 
 meantime, succeeded to the office of county treasurer of Suffolk 
 county, notified this plaintiff' that, acting under instructions from 
 the excise department, the original tax certificate would be 
 received by Mm, and a new certificate, covering the same period, 
 would be issued, and that the plaintiff would be given a rebate 
 receipt for the dilference between the flOO which should have been 
 paid and the |200 which was. in fact, paid. Acting under this 
 suggestion, plaintiff siirrendered his original liquor tax certificate 
 and was given a new certificate. He, at the same time, accepted 
 from the defendant a rebate receipt, which reads: ''Recei\'ed, this' 
 fifth day of March, 1897, from Edward Ging, of the village of 
 Greenport, in the county of Suffolk, N. Y., surrendered Liquor Tax 
 Certificate No. 2(i.2.jl, issued for |200, under subdivision No. 1 
 (series of 1896), on which there is a balance of pro rata rebate of 
 $100 from ilay 1, 1896, to April .30, 1897 (full months), payable 
 from any excise money hereafter received from said city or town, 
 or in any other manner hereafter legalized." On May 28, 1897, 
 the plaintiff presented said receipt to the defendant, and 
 demanded the payment thereof. Payment was refused, the 
 defendant stating that he had been instructed not to pay the 
 rebate ; that he could not pay it. The defendant admitted that he 
 had received moneys from the town of Southold, but that he had 
 paid it over as directed by law, and the trial court (a jury being 
 waived) found in favor of the plaintiff, and from the judgment 
 entered this appeal comes to this court, the defendant relying 
 upon the question of law involved. 
 
 It was foTind in the practical operations of the Liquor Tax Lav; 
 of 1896 (Chap. 112), that there was great difficulty in harmon- 
 izing the provisions of sections 25 and 13. Section 25 provides for 
 the surrender and cancellation of these liquor tax certificates, and 
 
3S4 Decisions Relating to 
 
 for the refunding of that poiliou of the tax which is not earned 
 at the time of such surrender; and section 13 directs that the 
 monevs collected shall be turned over to the several funds within 
 a short period, so that the officers who were directed to refund 
 the moneys were without the funds to comply with the law. The 
 excise department, to meet this situation, devised the system of 
 rebate receipts, one of which was given to the plaintiff in this 
 action; and the Legislature, in 1S1)7, enacted that "All outstand- 
 ing receipts, issued and given for liquor tax certificates, heretofore 
 surrendered and canceled, shall -ilso be paid in the manner above 
 provided for the jiayment of rebate moneys upon certificates here- 
 after surrendered and canceled, upon the order of the said State 
 Commissioner, to be issued by the said commissioner upon the 
 surrender of such receipt to him, accompanied by the verified 
 petition of 1!ie holder of such i-(H-eipt, setting forth the facts that 
 the holder oE said canceled certificate, at the time of the surrender 
 and cancellation thereof, had not violated any of the provisions 
 of the Liquor Tax Law, and has not been arrested or inrlicted for 
 any such violation." (§2."'), chap. 112, Li.ws of 1890, as amended 
 by chap. 312. Laws of 1S97.) This statute, enacted at the sugges- 
 tion of the State Commissioner of Excise, was designed to provide 
 for the payment of rebates, and the mere fact that in the case 
 at bar the rebate was for money jiaid in excess of the legal rate 
 does not change the rights of the parties, nor does it serve to give 
 this plaintiff a cause of action against the county treasurer of 
 Sulfolk county The receipt given to the plaintiff provides that 
 the rebate shall be "payable from any excise money hereafter 
 received from said city or town, or in any other manner hereafter 
 Jegali-ed." The Legislature has since that time legalized a 
 particular method for i-oimbursing those who have these rebate 
 receipls, and the plaintiff must, therefore, look to the source 
 pointed out by the law for his money. 
 
 There is no reason to doubt that the plaintiff in this action has 
 had the advantages of a liquor tax certificate equal to those who 
 have in other localities paid $200 for the sa^-. The village in 
 which he is located unquestionably has a population in excess 
 of 1,200 inhabitants, but the statute requires that this fact shall 
 appear by either the last State or the last National census, and 
 he was technically entitled to the tax certificate on payment of 
 $100. He has surrendered his original certificate,, and has taken 
 the receipt of the county treasurer, which entitles him to a rebate. 
 
Liquor Tax Law 385 
 
 and the law points out a method of payment. We are unable 
 to see that he has any equities in the premises which would war- 
 rant this court in sustaining a judgment in his favor against the 
 county treasurer; and as he has his remedy under the law, as 
 amended in 1897, we conclude that the judgment should be 
 reversed and the compla'i+ dismissed, with costs. 
 
 All concurred. 
 
 Judgmeiit reversed and complaint dismissed, with costs. 
 
 First Appellate Department, August, 1898. Reported. 33 App. Div. 130. 
 
 Henry H. Lyman, as State Commissioner of Excise of the State 
 of New York, Appellant, v. Broadway Garden Hotel and Oab-b 
 Company and Fidelity and Deposit Company of Maryland, 
 Respondents. 
 
 Intoxicating liquor — Action on a bond given to secure a liquor tax 
 certificate — When the complaint states but a single cause of action. 
 A complaint in an action on a bond given to the People of the State or 
 New York to secure a liquor tax certificate, which avers a number of 
 specific breaches of the various conditions of the bond, contains but a 
 single cause of action. 
 
 Appeal by the plaintiff, Henry H. Lyman, as State Commis- 
 sioner of Excise of the State of New York, from an order of the 
 Supreme Court, made at the New York Special Term and entered 
 in the oflQce of the clerk of the county of New York on the 6th 
 day of May, 1898, setting aside the plaintiff's complaint and 
 granting him leave to serve an amended complaint. 
 
 The complaint is upon a bond given to secure a liquor ta^ 
 certificate. The bond reads that the parties are held and firmly 
 bound unto The People of the State of New York in the penal 
 sum of $1,600. The condition is that, if the tax certificate is 
 given unto the principal, he will not, to quote the precise law- 
 guage of the instrument, " while the business for which such Tax 
 Certificate is given shall be carried on, suffer or permit any 
 25 
 
386 Decisions Relating to 
 
 gambling to be done in the place designated by the Tax Certifi- 
 cate in which the trafflc in liquors is to be carried on, or in anj 
 yard, booth or garden appertaining thereto or connected there- 
 with, or suffer or permit said premises to become disorderly, and 
 will not violate any of the provisions of the Liquor Tax Law, or 
 any act amendatory thereof or supplementary thereto; then this 
 obligation shall be void; otherwise it is to be and remain in full 
 force and effect to cover every violation of the Liquor Tax Law 
 and all fines and penalties incurred or imposed thereunder. An 
 action for the breach of any condition of this bond may be main- 
 tained without previous conviction or prosecution for violation of 
 any provision of said Liquor Tax Law." 
 
 Royal R. Scott, for the appellant. 
 
 James B. Soley, for the respondent. Fidelity and Deposit Com- 
 pany of Maryland. 
 
 Barrett, J. But one cause of action is alleged in the com- 
 plaint. That cause of action is upon a single instrument to 
 recover the sum named therein. The plaintiff has averred a 
 number of specific breaches of the various conditions of this bond. 
 These breaches, however, do not constitute separate causes of 
 action. They are simply separate assignments of the specific 
 breaches upon which judgment for the single sum is demanded. 
 The defendant seems to think that the correctness of the order 
 made below depends upon the question whether the amount in 
 the bond is to be regarded as a penalty or as liquidated damages. 
 This view is erroneous. It matters not whether the recovery be 
 limited to the damages sustained by the various breaches alleged, 
 or whether the sum named iu the bond be treated as liquidated 
 damages. In either aspect the cause of action is single. The 
 action must not be confused with one to recover statutory penal- 
 ties. It is upon the surety's contract to pay a specific sum of 
 money. A right of action inures upon the breach of any one of 
 the conditions of the bond. The cause of action is the same 
 upon the breach of all the conditions. The recovery may, it is 
 true, be greater or less, dependent upon the proper view of the 
 sum specified. With that question we have at present nothing 
 to do. Whether it be a penalty or liquidated damages, there is 
 still but a single cause of action alleged in the complaint. 
 
Liquor Tax Law 387 
 
 The order should, therefore, be reversed, with ten dollars costs 
 and disbursements, and the motion denied, with ten dollars costs. 
 
 Van Brunt, P. J., Rumset, O'Brien and McLaughlin, JJ., 
 concurred. 
 
 Order reversed, with ten dollars costs and disbursements, and 
 motion denied, with ten dollars costs. 
 
 Supreme Court, New York Special Term, August, 1898. Reported. 
 
 24 Misc. 469. 
 
 The People of the State of New York, Plaintiff, v. Mark Levy 
 et al., Defendants. 
 
 1. Greater New York charter — Certificate tfiat a misdemeanor sliould be 
 prosecuted by indictment. 
 
 A certificate will not be i^ranted, under the Greater New York charter 
 (Laws of 1897, chap. 378, § 1406) by a justice of the Supreme Court, that 
 it Is reasonable that a charge of misdemeanor, upon which a defendant 
 has been held for trial at the Court of Special Sessions of the second 
 division of the city of New York, should be prosecuted by indictment, 
 except in a case where exceptional features render a jury trial proper, or 
 where a fair trial cannot be had at the Special Sessions. 
 
 2. A misdemeanant is not entitled to a jury trial. 
 
 In view of the provisions of section 23 of article 6 of the Constitution of 
 1894, that "Courts of Special Sessions shall have such jurisdiction ol 
 offenses of the grade of misdemeanors as may be prescribed by law,'f a 
 statute which deprives a person, charged with a misdemeanor, of the right 
 to a trial by jury can not be held unconstitutional. 
 
 Motions for certificates that it is reasonable that the charges 
 of misdemeanors so made shall be prosecuted by indictments. 
 
 Asa Bird Gardiner, district attorney, for People. 
 
 N. S. Levy, for Mark Levy. 
 
 L. Levy, for Hiedeman. 
 
 Price & Hoyer, for Codney. 
 
388 Decisions Relating to 
 
 Mark Alter, for Stajer. 
 Promme Bros., for Schottler. 
 
 Bbbkman, J. In all of the above cases, the defendants have 
 been charged with misdemeanors, and have been held for trial 
 at the Court of Special Sessions of the Second Division of the 
 city of New York. In each case a motion has been made before 
 me for a certificate that it is reasonable that the charge so made 
 shall be prosecuted by indictment. 
 
 The authority for sucli a motion is found in section 1406 of 
 the Greater New York Charter, which provides that the Court of 
 Special Sessions shall be divested of jurisdiction to proceed with 
 the hearing- and determination of any cliarge of misdemeanor in 
 either of the following cases: First, if before the commencement 
 of the trial in said court a grand jury shall present an indictment 
 for the same oti'ense; second, if before the commencement of such 
 trial a justice of the Supreme Court, in the judicial department 
 where such trial would be liad. shall certify that it is reasonable 
 that such charge shall be prosecuted liy indictment. 
 
 It will be observed that the granting of such an order is largely 
 discretionary, and that the reasons which would justify such a 
 certificate must be something more than the mere preference of 
 the defendant for a jury trial. Facts must be brought to the 
 attention of the judge, to whom the application is made, tending 
 to show that the case is of an exceptional character, and that for 
 some special reason the defendant cannot have a fair trial in the 
 Court of Special Sessions, or that there are exceptional features 
 in the case which render it desirable and proper that the action 
 should be tried before a jury rather than by a justice of the 
 Special Sessions. This, I think, is the plain meaning of the 
 statute. It never was intended that such applications should be 
 granted as a matter of course. This is the more obvious when 
 we consider the condition of the law as it was prior to the enact- 
 ment of the Greater New York Charter. 
 
 By chapter 601 of the Laws of 1S95, entitled "An act in relation 
 to the inferior courts of criminal jurisdiction in the city and 
 county of New York" (§14), it was provided, among other 
 things, that upon the defendant swearing that he was not guilty 
 of the charge made against him, the justice to whom the applica- 
 tion was made should make an order that the charge be proceeded 
 
LiQuoB Tax Law 389 
 
 with before a grand jury. Under such circumstances there was 
 no room for the exercise of judgment or discretion, but the 
 justice was compelled, upon the mere aflfldavit of the defendant 
 that he was guiltless, to make the order asked for. The motive 
 for the change in the statute, which is embodied in the Greater 
 New York Charter, is apparent, not only upon its face, but also 
 upon a consideration of the effect upon the administration of 
 criminal justice in this county of the compulsory features of 
 the act of 1895. In a great number of cases of misdemeanors 
 orders were obtained, which, as I have said, the court was com- 
 pelled to grant, ousting the Court of Special Sessions of jurisdic- 
 tion to try them, to the great embarrassment of the district 
 attorney and the courts of record of criminal jurisdiction. Not 
 only were there great delays in the prosecution of the cases them- 
 selves, owing to their multitude, but delays were also occasioned 
 in the prosecution of other cases of felonies, which, of necessity, 
 could only be tried before a jury after indictment. The object 
 of the Legislature in enacting chapter 601 of the Laws of 1895 
 was to provide for the speedy administration of justice in 
 criminal causes, and to that end to relieve the grand jury and 
 the higher criminal courts from a consideration of petty offenses 
 which had seriously interfered with the more important business 
 properly appertaining to such bodies and tribunals. This 
 purpose, as we have seen, was largely defeated by the mandatory 
 provisions with respect to the transfer of misdemeanors from 
 the Special Sessions to the grand jury, and it was to remedy 
 this mischief that persons charged with misdemeanors are now 
 required to satisfy the judge that there exists some substantial 
 reason why the Court of Special Sessions, which has been con- 
 stituted by the Legislature for the purpose of trying such 
 offenses, should be deprived of jurisdiction in their particular 
 cases. 
 
 Some question has been made with respect to the constitution- 
 ality of a law which deprives a person charged with the commis- 
 sion of such an offense of the right of trial by jury. Such an 
 objection as this would have been a substantial one prior to the 
 amendment of section 26 of article 6 of the old Constitution, 
 now embodied in section 23 of article 6 of the present Consti 
 tution of this State, which provides that " Courts of Special 
 Sessions shall have such jurisdiction of offenses of the grade of 
 misdemeanors as may be prescribed by law." Under this pro- 
 
390 Decisions Relating to 
 
 vision it has been held that the right of trial by jury does not 
 apply to the petty offenses triable before a Court of Special 
 Sessions. People ex rel. Comaford v. Dutcher, 83 N. Y. 240. 
 
 An examination of the papers in each of these motions, which 
 have been made before me for a certificate under the statute, 
 discloses an utter absence of any averment or proof which would 
 reasonably justify me in granting the relief asked for. In some 
 of them all that the defendant alleges is that he is not guilty of 
 the charge, while in the others the only reason given for the 
 application is that there is a conflict of evidence involving the 
 credibility of witnesses. With respect to the class of cases first 
 mentioned, it is obvious that there is nothing upon which the 
 reasonableness of the application can be determined; in the 
 other class of cases, the reasons assigned are entirely insufQcient, 
 and do not come at all within the spirit and intention of the 
 statute. Of course the assumption in all of these cases, where 
 the defendant pleads not guilty, is that there will be a conflict 
 of evidence, and that questions with respect to the credibility of 
 Witnesses will arise. These are the ordinary and almost uni- 
 versal characteristics of the trial of all the issues civil and 
 cTiminal. If such reasons should be accepted as sufficient to 
 warrant the transfer of a case from the Special Sessions, it is 
 plain that every such application would have to be granted, and 
 the purposes of the statutory provision upon the subject which 
 is now in force would be completely nullified. 
 
 The motion in each of the above cases is, therefore, denied. 
 
 Motions denied. 
 
 Supreme Court, New York Special Term. Reported. N. Y. L. J., 
 
 August 1, 1898. 
 
 In the Matter of the Application of Heney H. Lyman to Revoke 
 the Liquor Tax Certificate of John Fuhemann. 
 
 McLean, J.: It does not appear, that the dances and enter- 
 tainments in the Epiphany School, are not for educational pur- 
 poses, or incidental thereto. The distance between the school and 
 the place occupied for the traffic in liquors, measured according 
 to the requirements of the statute, is within the inhibition of the 
 
Liquor Tax Law 391 
 
 statute. The statement of the applicant, that the premises have 
 been continuously occupied for trafBc in liquors since 1888, and 
 longer, was untrue; for, while brief interruption, such as for 
 domestic bereavement, might be disregarded, premises (whatever 
 their contents) which have been closed for over a twelvemonth, 
 while the owner is looking for a new purchaser, can not be said 
 to be occupied for the traflSc in liquors, within the purview of 
 the act. 
 
 Motion granted. 
 
 Supreme Court, Ulster Special Term, September, 1898. Reported. 
 
 24 Misc. 552. 
 
 Matter of the Application of Henry H. Lyman for an Order 
 Revoking and Cancelling Liquor Tax Certificate No. 21,780, 
 Issued to Nelson Garrison. 
 
 Liquor Tax Law — Revocation of tax certificate — Consents upon applica- 
 tion for tax certificate. 
 Upon an application to revoke a liquor tax certificate for failure to 
 secure the consent of the required number of owners of dwellings within 
 the limits specified by the act, the court will consider the nature of the 
 dwellings, and where it appears that two rough-board buildings, not 
 lathed or plastered, without chimneys and one without windows, were 
 occupied each by a man without family for the first time on the night 
 prior to the application for the certificate, such buildings and the 
 occupancy thereof Is an evasion of the statute, and the certificate will be 
 revoked. 
 
 Application for the revocation of a liquor tax certificate. 
 
 Charles F. Cantine, for State Commissioner of Excise, and 
 application. 
 
 Benjamin McClung and Graham Witschief, for defendant, 
 opposed. 
 
 Clearwater^ J. : This is an application, under section 28 of 
 the Liquor Tax Law, for the revocation of a certificate. 
 
 The principal issue is as to the truth of the allegation that the 
 consent of two-thirds of the owners of the buildings occupied 
 
392 Decisions Relating to 
 
 exclusively as dwellings within 200 feet of the defendant's 
 premises had been obtained by him at the time of makinjr his 
 application. 
 
 The act provides that when the nearest entrance to the premises 
 of the applicant is tcithin 200 feet measured in a straight line, of 
 the nearest entrance to buildings occupied exclusively for dwell- 
 ings, there shall be filed simultaneously with the application, a 
 consent in writing that such traffic be carried on, executed by the 
 owners or their agents of at least two-thirds of the total number 
 of such buildings. 
 
 A Mr. Bingham is the owner of a dwelling, claimed by the State 
 Commissioner of Excise to be within the 200 feet radius. The 
 defendant's place fronts on Main street in the village of 
 ilarlborough, and the door of its nearest entrance is in a recess, 
 twelve inches south of the north line of the building. The distance 
 from the dour to Bingham's residence is 199 feet; from the 
 (Jdorstcp it is 200 feet. To hold that the measurement should be 
 taken from the door, instead of the doorstep, would be an over- 
 strained and hy]iercritical construction of the act, neither in 
 accord with accepted canons of construction as to legislative 
 intent, or that common sense which should guide judicial as well 
 as lay opinion. 
 
 The application was made to the county treasurer of Ulster 
 county at about 9 o'clock of the evening of the 5th day of May, 
 1898, and granted about an hour afterwards. For twelve years 
 prior to that time, a building ten feet long, eight feet wide and 
 seven feet high, composed of rough, unpainted boards, with a 
 single window, and no chimney, standing in the rear of the 
 defendant's premises, had been used as a woodshed. The boards 
 were so loosely joined that it was easy to look into the building 
 through the joints. About midnight of the 5th of May, a man of 
 nomadic life, without family, who had previously slept in a 
 cooper shop, moved into it, and claims to have lived in it since. 
 Another building, of rough hemlock boards, twelve feet long, 
 ei<;ht feet wide and seven feet high, without windows or chimney, 
 was at that time built a few feet distant from the woodshed, and 
 on that night for the first, was occupied by a man of migratory 
 habit, also without family, who had previously slept in a small 
 building used for packing berries. Neither building was lathed or 
 plastered. Neitlier had ever been used as a dwelling. Their con 
 struction was of the slightest character, with little, if any 
 
Liquor Tax Law 393 
 
 foundation. Both complete cost $35. They were the property of 
 the owner of the building in which the defendant conducts his 
 business. It is claimed by the defendant that they are dwelling 
 houses within the meaning of this act, and they were so alleged 
 to be in his application. 
 
 This law, like any other, should receive a fair interpretation. 
 It should not be constriied harshly as against the holder of a 
 certificate, nor interpreted so loosely as to emasculate its 
 restrictive provisions and break down that protection which it 
 gives to adjacent property owners, the public and to the dealer 
 who honestly complies with all its conditions, as against one 
 who seeks to evade it. 
 
 It is not the size or the material of which a building is 
 constructed, but the piirpose to which it is devoted that is the 
 controlling factor under this statute. A dwelling may be humble 
 and inexpensive, yet as much a domicile as a mansion. But to 
 hold that buildings of this character, tenanted for the first on the 
 eve of an application for a certificate, by men without families 
 or fixed place of abode, are to be regarded as dwellings for the 
 purpose of obtaining and holding a certificate would be farcical. 
 It would be wiser to expunge the provision of the law relative to 
 the consent of owners of dwellings from the statute book, for to 
 retain it and permit it to be evaded by artifices so transparent 
 is to bring the entire legal system of the State into contempt. 
 
 These buildings were not dwellings within the provisions of 
 this statute, and to treat them as such was an evasion of the law. 
 Further discussion is unnecessary. As the defendant did not file 
 and had not obtained the requisite consents the statement in his 
 application that he had done so was untrue. 
 
 The prayer of the petitioner must be granted, and the certificate 
 revoked, with such costs as are properly taxable in a special 
 proceeding. 
 
 Ordered accordingly. 
 
394 Decisions Kelating to 
 
 County Court, Otsego County, September, 1898. Reported. 25 Misc. 599. 
 
 I 
 The People of the State of New Yoek, Respondent, v. Ieving 
 
 MuLKiNS, Appellant. 
 
 1. Courts of Special Sessions — Appeal not affected by failure to comply 
 
 with Code of Criminal Procedure, §752, as amended in 1897. 
 Where an appeal from the Judgment of a Court of Special Sessions has 
 been perfected in accordance with section 755 of the Code of Criminal 
 Procedure, a failure of the defendant or his attorney to comply with section 
 752 of said code as amended in 1897 and serve, within five days after the 
 appeal is allowed, upon the district attorney a copy of the afiBdavlt upon 
 which the appeal was granted, together with a notice that the same has 
 been allowed, does not affect the validity of the appeal. 
 
 2. Crimes — Intoxication in a public place — Arrest without a warrant — 
 
 Subsequent warrant unnecessary. 
 A peace officer may, without a warrant, arrest a person for the mis- 
 demeanor of being intoxicated in a public place, and where a person thus 
 arrested Is brought before the magistrate, it is unnecessary for the latter 
 to then issue a warrant. 
 
 •. Courts of Special Sessions — Intoxication in a public place — Not to ba 
 prosecuted by indictment. 
 The Liquor Tax Law, as amended by subdivision 2 of chapter 312 of tha 
 lAws of 1897, gives Courts of Special Sessions exclusive jurisdiction to 
 try the offense of intoxication in a public place; there is no provision of 
 law which authorizes a county judge or a justice of the Supreme Court 
 to certify under section 57 of the Code of Criminal Procedure that it is 
 reasonable that such a charge be prosecuted by indictment, and, therefore, 
 a failure of the magistrate to inform the accused that he has such a 
 right is not a ground of error. 
 
 Appeal from a judgment of a Court of Special Sessions, con- 
 victing the defendant of the crime of intoxication in a public 
 place. 
 
 W. J. Palmer, for appellant. 
 
 Tilley Blakely, District Attorney, for respondent. 
 
 Barnum, J. The defendant was arrested by an officer without 
 a warrant and taken before a justice of the peace. An informa- 
 tion was made and filed charging the defendant with the crime 
 of being intoxicated in a public place, which is a misdemeanor 
 under chapter 312, section 40, Laws of 1897. 
 
Liquor Tax Law 395 
 
 The defendant was committed under plea of guilty, after having 
 been informed by the justice that he was entitled to the aid of 
 counsel and to a jury trial, and was sentenced to confinement in 
 the Albany penitentiary for ninety days, on the 7th day of July, 
 1898. 
 
 An appeal to this court was allowed on the 12th day of July, 
 1898. 
 
 A copy of the affidavit upon which the appeal was allowed was 
 served upon the district attorney, July 20, 1898. 
 
 The district attorney asks the court to hold that the appeal 
 was not perfected, and that this court has not acquired jurisdic- 
 tion of the case, because of the failure to serve copy affidavit and 
 notice of allowance of the appeal upon him within five days after 
 the appeal was allowed, as provided by a clause of section 752 of 
 the Code of Criminal Procedure, which was added to the section 
 by chapter 536 of Laws of 1897, and provides that the defendant 
 or his attorney must within five days after the appeal is granted 
 serve a copy of the affidavit and order upon the district attorney. 
 
 The language of the amendment is emphatic, and the Legisla- 
 ture evidently intended that it should have some effect, but no 
 provision is made in the statute prescribing any consequences for 
 a failure to comply with its provisions, nor does it contain 
 language indicating an intent to change any other section of the 
 Code. Section 755, which provides when an appeal shall be 
 deemed taken, was left the same as it has been since it was 
 amended in 1890. 
 
 Section 755 provides that the affidavit and allowance of the 
 appeal must be delivered to the magistrate within five days after 
 the allowance of the appeal, and when so delivered the appeal Js 
 deemed taken. 
 
 It is not necessary at this time to determine what effect can 
 be given to a failure to serve upon the district attorney, aa 
 required by the amendment of 1897 to section 752. 
 
 I am convinced that its effect is not such as to make it neces- 
 sary to serve the affidavit and order upon the district attorney 
 before the appeal shall be perfected. 
 
 The defendant having complied with the requirements of 
 section 755, the appeal was properly taken, and this court has 
 jurisdiction of the case. 
 
 Defendant's counsel contends tliat the justice should have 
 issued a warrant after the defendimt was brought before him, 
 
396 Decisions Relating to 
 
 and that judgment should be reversed because of his failure to 
 do so. 
 
 The arrest was properly made without a warrant. Code. Crim. 
 Proc, § 177. 
 
 There was no necessity for then issuing a warrant. The office 
 of a warrant is to bring a defendant before the court, and I 
 cannot see any necessity for a preliminary examination for the 
 purpose of determining whether he was properly arrested. That 
 question can be better determined by the trial, which may follow 
 if defendant does not plead guilty. 
 
 A warrant if then issued would have commanded the officer to 
 forthwith arrest the defendant and bring him before the magi'?- 
 trate, an entirely useless proceeding at a time when the defendant 
 was already under arrest and before the magistrate on the same 
 charge. 
 
 The views above expressed seem to me to be fully sustained by 
 reason and by the authorities. People ex rel. Gunn v. AA'ebster, 
 75 Hun, 281; People v. Burns, 19 Misc. Rep. 681. 
 
 It is urged that the defendant had the right to apply to a 
 judge of the Supreme Court, or to the county judge of the county, 
 for a certificate that it is reasonable that the charge be prose- 
 cuted by indictment, pursuant to section 57 of the Code of 
 Criminal Procedure; and that it was reversible error for the 
 court to omit to inform the defendant, when he was brought 
 before him, that he had the right to make the application. 
 
 Section 35 of the Liquor Tax Law, as amended by chapter 312 
 of Laws of 1897, subdivision 2, provides that " Courts of Special 
 Sessions shall have exclusive jurisdiction to try and determine, 
 according to law, all complaints for violation of section 40. 
 • * * Any person convicted in a Court of Special Sessions 
 for violation of any of the provisions of the liquor tax law, shall 
 be punished according to the provisions of this act." 
 
 Section 40 of the Liquor Tax Law provides that "Any person 
 intoxicated in a public place is guilty of a misdemeanor, and 
 may be arrested without warrant while so intoxicated, and shall 
 be punished by * * * imprisonment not exceeding six 
 months. • • • » 
 
 The act giving Courts of Special Sessions exclusive jurisdiction 
 to try and determine complaints for violation of section 40 of 
 the Liquor Tax Law makes no exceptions. It does not contain 
 any reference to sections 5G, 57 or 58 of the Code of Criminal 
 
LiQuoE Tax Law 397 
 
 Procedure, so that the defendant cannot claim any privilege 
 under the provisions of either of those sections, unless the 
 language of the sections is broad enough to embrace a complaint 
 for intoxication in a public place. 
 
 Section 56 of the Code of Criminal Procedure prescribes 
 that " Subject to the power of removal provided for in this 
 chapter. Courts of Special Sessions * * * have in the first 
 instance exclusive jurisdiction to hear and determine charges of 
 misdemeanors committed within their respective counties as 
 follows : " naming thirty-seven crimes. 
 
 Section 58 provides : " When a person is brought before a 
 magistrate charged with the commission of any of the crimes 
 mentioned in section fifty-six * * * it shall be the duty 
 of the magistrate to adjourn to give time for the defendant to 
 apply for a certificate," and adds : ''And when the defendant is 
 brought before the magistrate, it shall be the duty of the 
 magistrate to inform him of his rights under section fifty-seven 
 and this section." 
 
 Section 57 provides for procuring a certificate that it is reason- 
 able that the charge be prosecuted by indictment when the charge 
 is any of the crimes specified in section 56. 
 
 It then becomes important to determine whether section 56 
 contains language sufiiciently comprehensive to apply to a charge 
 of intoxication in a public place. 
 
 Defendant's attorney calls attention to subdivision 3o, and 
 quotes the words: " Such other jurisdiction as is now conferred 
 by statute," etc., and claims tliat the language is sufficient to 
 embrace the charge made against the defendant. 
 
 The language quoted by the attorney is not now a part of sub- 
 division 35. The subdivision was amended by chapter 555 of Laws 
 of 1896, and now reads: "For all violations of the provisions of 
 the agricultural, poor and domestic commerce laws," which 
 manifestly does not apply to the charge in question. 
 
 My attention has not been called to any provision of law, and I 
 have not been able to find any, which gives a justice of the 
 Supreme Court or a county judge the power, when the charge 
 against the defendant is intoxication in a public place, to order 
 that the charge be prosecuted by indictment. 
 
 The Court of Special Sessions in my opinion had exclusive 
 jurisdiction to try and determine the charge against the defendant. 
 
398 Decisions Relating to 
 
 I think the proceedings before the Court of Special Sessions 
 were free from error. 
 
 Section 764 of the Criminal Code confers upon the court the 
 power to modify the sentence imposed upon the defendant, if 
 the court shall deem it in furtherance of justice to do so. 
 
 I am convinced that the justice imposed the sentence which 
 seemed to him to be proper, and without doubt the effect upon the 
 defendant of knowing that the law can lay a heavy hand upon 
 those A\'li() violate its provisions will tend to impress him with the 
 fact that it must be respected. 
 
 So far as I am advised the defendant while intoxicated did not 
 commit any injury to person or property, and does not belong to 
 the criminal classes. I think that, after the warning which he 
 has had, a modification of the sentence to imprisonment in the 
 Albany penitentiary for sixty days may have a good effect in 
 restraining the defendant from a repetition of the offense. 
 
 An order may be prepared modifying the sentence to sixty 
 days' imprisonment in the Albany penitentiary, and as modified 
 afiirming the judgment. 
 
 Judgment modified and as modified aflQrmed. 
 
 Court of Appeals. Reported. 157 N. Y. 681. 
 
 The People of the State of New York, Appellant, v. Conrad 
 Stock, Respondent. 
 
 People V. Stock, 26 App. Div. 564. Aflflrmed. (Submitted, 
 October 5, 1898; decided, October 25, 1898.) 
 
 Appeal from an order of the Appellate Division of the Supreme 
 Court in the second judicial department, entered April 14, 1898, 
 aflarming an order of Special Term discharging the respondent 
 from custody under a writ of habeas corpus. 
 
 The respondent was convicted of a misdemeanor in having sold 
 liquor without having obtained a liquor tax certificate, and 
 sentenced to pay a fine of |300, or in default thereof be confined 
 
Liquor Tax Law 399 
 
 in the Dutchess county jail for a term not exceeding one day 
 for each dollar of the fine. 
 
 N. N. Stranahan, for appellant. 
 
 Charles A. Hopkins, for respondent. 
 
 Order affirmed on opinions below. 
 
 All concur, except Martin and Vann^ JJ., not voting. 
 
 First Appellate Department, October, 1898. Reported. 33 App. Div. 640. 
 
 In the ]\Iatter of the Petition of Henry H. Lyman for an Order 
 Revoking and Cancelling Liquor Tax Certificate No. 4867, 
 Issued to Bblden Club. 
 
 Appeal from an intermediate order, made in a special proceed- 
 ing brought under section 28 of the Liquor Tax Law, to revoke a 
 liquor tax certificate, which order overruled appellant's objection 
 as to sufficiency of petition and denied his motion for a dismissal 
 thereof. 
 
 Eoyal E. Scott, attorney for respondent, Lyman. 
 
 The order does not affect a substantial right within the meaning 
 of sections 1356 and 1357 of the Civil Code, and, therefore, is not 
 appealable. 
 
 In case a final order is made in the proceeding affecting a sub- 
 stantial right of the club, it may appeal from that order and in 
 that appeal bring this order up for review. Cambridge Valley 
 Nat. Bank v. Lynch, 76 N. Y. 514. The order overruled the 
 objections with leave to answer, and the Belden Club having 
 answered before appeal waived its right, if any, to appeal from 
 the order. 
 
 If the final order revoked the certificate that would be the order 
 affecting a substantial right and an appeal from it could bring 
 up this preliminary order for review. Sec. 1316 Code of Civil 
 Procedure. The objections are in nature of a demurrer and a 
 
400 Decisions Eblating to 
 
 decision of the court sustaining or overruling a demurrer is aii 
 order and can only be reviewed on appeal from a final judgment 
 entered thereon. Sections 1347, 1348 and 1349, Code of Civil 
 Procedure. Cambridge Valley Nat. Bank v. Lynch, 76 N. Y. 514. 
 T\'right V. Chapin, 74 Hun, 521. 
 
 The objection to the petition on the part of the Belden Club, 
 that in addition to locating the premises where it trafficked In 
 liquors, the petition should, in each paragraph, have repeated it 
 by saving that the illegal sales were made there, is a technical 
 objection and the Belden Club does not claim to have been . 
 misled by it. 
 
 Alfred E. Page, attorney for respondent, Hilliard. (No points.) 
 
 Loftus & Caffrey, attorneys for appellant, Belden Club. 
 
 The petition is insufficient in that it fails to show that any of 
 the alleged sales were made within the State of New York, or 
 even that the Belden Club ever established itself at the premises 
 mentioned in the petition. 
 
 Order affirmed, with ten dollars costs and disbursements. No 
 opinion. 
 
 First Appellate Department, November, 1898. Reported. 34 App. DIv. 389. 
 
 In the iMatter of the Petition of Henry H. Lyman for an Order 
 Revoking and Canceling Liquor Tax Certificate No. 2,524, 
 Issued to John Fchrmann, at No. 223 East Twenty-second 
 Street, New York. 
 
 John Fuhrmann, Appellant ; Henry H. Lyje an. Respondent. 
 
 Liquor Tax— The exemption in favor of premises, within 200 feet of a 
 
 schoolhcuse, in which liquor was sold on March 23, 1896— It is 
 
 waived where the traffic was thereafter suspended for eighteen 
 
 months — What is not a continuance of the business. 
 
 The privilege conferred by subdivision 2 of section 24 of the Liquor Tax 
 
 Law (Laws of 1896, chap. 112, as amended by Laws of 1897, chap. 312), 
 
 permitting the traffic in liquor on premises within 200 feet of a building 
 
 used exclusively as a schoolhcuse, provided such traffic was actually and 
 
Liquor Tax Law 401 
 
 la-wfully carried on in such, premises on Marcli 23, 1896, is forfeited, 
 ■wiiere it appears thiat, altliougli such traffic was lawfully carried on in 
 such premises on March 23, 1896, the license expired by operation of law 
 June 30, 1896, and that no liquor tax certiflcate was granted for the traffic 
 in liquors upon the said premises until December, 1897, the actual traffic 
 in liquors upon the said premises being suspended between June 30, 1896, 
 and January 1, 1898. 
 
 The mere fact that the fixtures used in the conduct of the business in 
 this place were not removed, and that the person who had owned a 
 chattel mortgage on such fixtures had foreclosed the mortgage and had 
 been in possession of the premises during the period when no business 
 was carried on, does not constitute a continuance of the business such as 
 would prevent the surrender of the privilege to conduct the liquor business 
 upon such premises; nor does the intention of the parties who held the 
 lease, as to the future use of the premises, constitute a continuance of 
 the business. 
 
 Appeal by John Fuhrmann from an order of the Supreme 
 Court, made at the New York Special Term and entered in the 
 ofSce of the clerk of the county of New York on the 20th day of 
 August, 1898, canceling the liquor tax certificate issued to the 
 said John Fuhrmann. 
 
 Moses Weinman, for the appellant. 
 
 Alfred E. Page, for the respondent. 
 
 Ingraham^ J. : The only question involved upon this appeal is 
 whether the premises upon which this defendant proposed to carry 
 on the liquor business was within the provision contained in sub- 
 division 2 of section 24 of the Liquor Tax Law (Chap. 112, Laws 
 of 1896 as amended by chap. 312 of the Laws of 1897). Th- 
 appellant applied for a liquor tax certificate, stating in his 
 application that traific in liquors was actually carried on in the 
 premises named on March 23, 1896, and that said premises had 
 been occupied continuously for such traffic since 1888. It appeared 
 that in 189G George Hahn received a license to traffic in liquors 
 upon said premises, which license expired by operation of law 
 June 30, 1896; that no liquor tax certiflcate was granted for the 
 traffic in liquors upon the said premises until December, 
 1897, and that the actual traffic in liquors was suspended 
 upon the said premises between the 30th of June, 1896, 
 and January 1, 1898. No liquor tax certificate having been 
 issued for the conduct of the liquor business upon such premises 
 26 
 
402 Decisions Relating to 
 
 during that period, the traffic in liquors thereupon was illegal. 
 The premises in question were within 200 feet of a building 
 used exclusively as a schoolhouse; and under section 24 of the 
 Liquor Tax Law the traffic in liquors cannot be permitted in said 
 premises unless such traffic was actually and lawfully carried on 
 in said premises on the 2;jd of March, 1896. If on the 23d day of 
 March, 1896, this place was lawfully occupied for such business, 
 the appellant was entitled to a liquor tax certificate, unless such 
 traffic in liquor were subsequently abandoned. Then such 
 abandonment worked a forfeiture of the privilege conferred by 
 the statute. That question was presented to this court in the 
 fourth department in People ex rel. Bagley v. Hamilton (25 App. 
 Div. 428). It was there held that where "the business of one 
 proprietor is closed up and no resumption thereof attempted by 
 his successor for sixty days, we think that, withiu the spirit of 
 the law, the privilege which it grants must be regarded as sur- 
 rendered." We think that case presents the correct construction 
 of the act and that it is authority for the determination arrived 
 at by the court below. The mere fact that the fixtures used in 
 the conduct of the business of this place were not removed, and 
 that the person who had owned a chattel mortgage on such 
 fixtures had foreclosed the mortgage and had been in possession 
 of the premises during the period when no business was carried 
 on, was not a continuance of the business which would prevent 
 the surrender of the privilege to conduct the liquor business upon 
 such premises. The business thus was actually suspended for a 
 period exceeding eighteen months. During that time no traffic of 
 liquor could lawfully be carried on in those premises as no 
 liquor tax had been paid under which such business could have 
 been conducted. There was no claim that liquor was actually 
 sold, or that any business was actually conducted on the premises 
 during this period. The intention of the parties who held the 
 lease as to the future use of the premises did not constitute a 
 continuance of the business. 
 
 We think, therefore, that the order appealed from was right 
 and should be affirmed, with costs. 
 
 Van Brunt, P. J., Patierson, O'Brien and ^IoLaughlin, JJ. 
 concurred. 
 
 Order affirmed, with costs. 
 
Liquor Tax Law 403 
 
 Supreme Court, Kings Special Term, November, 1898. Reported 25 IVlisc. 213. 
 
 Matter of the Application of William Bridge for an Order Revok- 
 ing and Cancelling the Certificate of License to Traffic in 
 Liquors issued to George Mohrmann. 
 
 1. Liquor Tax Law — Summary revocation of certificate for material false 
 
 statement. 
 
 Where the petition of a citizen, and its supporting affidavits, conclusively 
 show the falsity of a material statement made in an application for a 
 liquor tax certificate, issued in August, 1898, relative to the prior procure- 
 ment of the necessary consents of neighboring owners, and the circum- 
 stances indicate that the real facts were Intentionally withheld in order 
 to obtain the certificate, the latter will be revoked summarily, without 
 the intervention of a referee to take testimony and report upon certain 
 Issues raised by an answer, interposed in the form of a pleading in an 
 action. 
 
 2. Same — Exemption from consents lost by disuse of premises. 
 
 The exemption, from the necessity of procuring such consents, given 
 to persons who were licensed to traffic in liquor when the Liquor Tax Law 
 went into effect, is lost by the subsequent discontinuance of the business 
 and the abandonment of the premises for such use. 
 
 Petition by William Bridge, a citizen, for an order revoking 
 and cancelling the liquor tax certificate, issued to George Mohr- 
 mann, by the deputy commissioner of the borough of Brooklyn, 
 city of New York, on the ground that material statements in the 
 application of the holder thereof were false, and that he was 
 not entitled to receive and is not entitled to hold such certificate. 
 
 George W. Vain Slyck, for petitioner. 
 
 John M. Ward, for respondent. 
 
 Garrbtson, J. The allegations of the petition are denied, in 
 part, by answer interposed in form as a pleading in an action, 
 and the respondent asks that a referee be appointed to take testi- 
 mony and report the evidence to the court. The Liquor Tax 
 Law, §28, subd. 2, as amended by chap. 312, Laws of 189 T. 
 This course is not deemed necessary for the reason that there 
 was served with the petition four affidavits which fully sustain 
 the allegations of the petition, and no statement of fact therein 
 
404 Decisions Relating to 
 
 set forth is controverted by the affidavit of the respondent also 
 submitted hereon. 
 
 This proceeding is instituted to have revoked and cancelled a 
 liquor tax certificate issued on August 20, 1898, by the deputy 
 commissioner of excise for the borough of Brooklyn in the city 
 of New York, which authorized the respondent to conduct the 
 business of trafficking in liquors to be drunk upon the premises 
 at No. 20 Elm place in said borough, upon the ground that a 
 material statement made in the respondent's application for the 
 certificate is false, viz., that there were but three buildings 
 occupied exclusively as dwellings, the nearest entrance to which 
 is within two hundred feet, measured in a straight line, of the 
 nearest entrance to the premises where the traffic in liquors was 
 intended to be carried on. Id. 
 
 The proofs quite satisfactorily show that such statement was 
 false when so made, and the circumstances tend to indicate that 
 it was known so to be at the time, and that the facts were 
 intentionally withheld, to obtain the certificate, which otherwise, 
 the respondent could not have obtained. 
 
 The statement is material, for the commissioner is bound 
 thereby, and has no discretion. People ex rel Belden Club v. 
 Hilliard, 28 App. Div. 140. 
 
 In addition to three dwellings mentioned in the application 
 for the certificate (as to two of which the respondent claims that 
 he has secured valid consents), it is conclusively proven that there 
 were at least seven other buildings occupied exclusively as dwell- 
 ings, the nearest entrance to which, is within two hundred feet, 
 measured in a straitiht line, of the nearest entrance to the 
 premises No. 20 Elm plate, as to which no mention is made in the 
 application. It, therefore, apjtears that of the total number of 
 ten dwellings, the respondent has consents as to two instead of 
 seven, the required two-thirds. Even if the petitioner ijave con- 
 sent as to four of the seven, as claimed (which however is not 
 established) the respondent has still failed to sonire a sufficient 
 number of consents. These four consents, if, in fact, given, were 
 not made a part of the application, and they could not be made 
 effective by filing them with the commissioner after the issuance 
 of the certificate. Inasmuch as the commissioner is bound by 
 the statement in the application, the applicant should also be. 
 It was upon the representation of its truthfulness that the 
 certificate was issued. 
 
Liquor Tax Law 405 
 
 The further statement made in the application that the 
 premises were occupied for such traflQc from 1882 until March, 
 1897, is of no avail to the respondent. The exemption from the 
 requirements of the statute as to consents is lost by a subsequent 
 discontinuance of the business and the abandonment of the 
 premises for such use. Matter of Ritchie, 18 Misc. Rep. 341 ; 
 People ex rel. Sweeney v. Lammerts, id. 343; affirmed, 14 App. 
 Div. 628. 
 
 The measurements were properly taken in a straight line, from 
 point to point, as upon the radius of a circle of which the nearest 
 entrance of the premises where the business was to be carried on, 
 is the center, disregarding all obstructions in its course. The 
 Liquor Tax Law, § 17, subd. 8, as amended by chap. 312, Laws 
 1897; Matter of Ruland, 21 Misc. Rep. 504. The prayer of the 
 petitioner is granted. 
 
 Petition granted. 
 
 Supreme Court, Kings Special Term, November, 1898. Reported. 
 
 25 IVlisc. 217. 
 
 The People ex rel. Ernst Ochs, Relator, v. Henry H. Lyman, 
 as Commissioner, etc., Respondent. 
 
 Liquor Tax Law — A conviction does not cut off tlie riglit to a rebate for 
 tile tax of the ensuing year — Procedure to procure rebate. 
 
 The conviction, on April 26, 1898, of the holder of a liquor tax certificate 
 of the offense of selling liquor on Sunday, does not affect the right of his 
 assignee to recover the rebate of a tax paid, on April 25, 1898, by the same 
 person for a new certificate, which would not become operative until May 
 1, 1898, and which was surrendered at the earliest opportunity, no business 
 having been done under it. 
 
 Proper method of procuring the rebate discussed. 
 
 Motion for a peremptory writ of mandamus to require the 
 respondent to pay to the relator, as assignee of the liquor tax 
 certificate, the full rebate of the tax paid by one Joseph Palevski 
 therefor on April 25, 1898, and which authorized Palevski to 
 traffic in liquors for the year commencing May 1, 1898. 
 
 The respondent opposed on the ground that it appeared from 
 the motion papers that on April 26, 1898, Palevski was convicted 
 of the offense of selling liquor on Sunday. 
 
 For further facts, see opinion. 
 
ItXi DiocisiONS Eelating to 
 
 Guggenheimer, Untermyer & iM;ii',sli:ill, lor relator. 
 Mead & tSlrauahan, for rL-wpondeiit. 
 
 Garretson, J. I am of the opinion dial the rclalor (a corpora- 
 tion) is entitled to the rcltalf ol' the tax paid for the liquor tax 
 certificalc issued to its assij^iior, Joseph ralcvsid, liy the coniitv 
 treasurer of Qiiucns county for the year from May 1, 1898, to May 
 1, 1899. 
 
 The conviction of I'alcvski was had on April -(J, lsi)8, and while 
 he was trafficking in liquors under a ccrlificate issued for the 
 year commencing ;\Iay 1, l.S!)7. The conviclion worked a for- 
 feiture of the certificate last mentioned, and deju-ived him of all 
 rights and privileges thei'eundei- and of any right to the rebate 
 of the tax paid thereon. The Liquor Tax Law, § ;!4, subd. 2, as 
 amended by chap. .'IIL', Laws of 1S!)7. 
 
 The certificate of ISDS was not in force at the date of the 
 conviciion. It did no( become o|)erative as a license until ]\Iay 
 1, ]h;j8. No business was ciii-ried on thereunder, and it was 
 surrendered to Hie counly tre:isu)-er on May 2d, the first day of 
 the month being Sunday. I'.esides, the tax, although paid on 
 April 25th, the date of its issmincc, was not assessed until May 
 ist. Id., § 12. 
 
 A careful reading of the law discloses no warrant for the con- 
 tention of the resiioiident, that the right to the rebate under the 
 certificate of ISDS, is forfeited by tlie conviction of Palevski while 
 the certificate of 1S97 w;is in foixe. The conviction required the 
 i-efusal of a certificate for the year from May 1, 1S9S, only, and 
 such course would make necessary a return of the tax paid upon 
 the appropriation therefor. 
 
 The penal provisions of the statute must be strictly construed 
 and the courts will not bring about a forfeiture of property rights 
 unless the language of the statute is clear and unequivocal. While 
 the relator may not have ppremi)toiy writ of mandamus direct- 
 ing the resjHiiident to p;iy Die rejinle lo i(, the general words o' 
 the notice of motion " for such other and further relief in the 
 firemises :is iniiy be jnsi," might permit the issuance of the writ 
 to re((iiire Hie respondent to prepni'c the two orders that the 
 county treasurer jiiiy llie rehiite in the manner mentioned in 
 section 2i'i, ]i:id a pvopei' cnse been presented by the relator. 
 
 It does not a|)pear from tiie jielilion that the countv treasurer 
 
Liquor Tax Law 407 
 
 has made the duplicate receipts required to be made by that 
 section, and has transmitted one of them, with the tax certificate 
 and petition for cancellation of the certificate, to the respondent. 
 Indeed, the contrary is inferable from the statements of fact 
 therein set forth. 
 
 The performance of these acts by the county treasurer is a 
 prerequisite to the making by the respondent of the orders for 
 such payment, and for that reason the motion must be denied. 
 
 Unless with the consent and at the instance of the respondent 
 the county treasurer shall forthwith transmit such duplicate 
 receipt and papers to the respondent, no relief can be afforded 
 the petitioner in this proceeding, and it must have recourse in 
 the first instance to its appropriate remedy against the county 
 treasurer, to compel compliance with the statute on his part. 
 
 The motion for a peremptory writ of mandamus is denied, with 
 |30 costs. 
 
 Motion denied, with $30 costs. 
 
 Supreme Court, Suffolk Special Term, November, 1898. Reported. 
 
 25 Misc. 361. 
 
 Matter of Application of John Sherry for a Eevocation and Can- 
 cellation of the Liquor Tax Certificate of George Van Ausdall, 
 Je. 
 
 Liquor Tax Law — A lessee of a dwelling cannot consent to liquor traffic. 
 Where, because of the proximity of buildings, used exclusively as dwell- 
 ings, to a proposed saloon, the consents of their owners are necessary, 
 under the Liquor Tax Law, to the conduct of traffic in liquors, such a 
 consent can not lawfully be executed by the lessee of a dwelling; and the 
 statement, in the application of a person for liquor tax certificate, that a 
 certain consenting person was the lessee and agent of one of the buildings, 
 when in fact he was only the lessee, is such a false representation of a 
 material fact as justifies a revocation of the certificate. 
 
 Petition by John Sherry, as a citizen, to revoke the liquor tax 
 certificate granted by him as county treasurer of Suffolk county, 
 upon the ground that there were two owners of dwellings within 
 two hundred feet of the place for which certificate was applied 
 
4(is DiaoisioNs Relating to 
 
 for. One owner executed consent, lesHeu and agent executed con- 
 sent for other dwelling. 
 
 George C. Hendrickson, for petitioner. 
 
 William McKinney, for applicant. 
 
 WiLiiOT M. Smith, J. This application is made for the revo- 
 cation of the liquor tax cer(:iflcate iswucd to (U-ov^e Van Ausdall, 
 Jr., by the county treasurer of Siiliolk county, on the ground that 
 the application foi' said certificate contained a false representa- 
 tion as to the truth of a laet upon which depended the righl 
 of the applicant io i-eeeive said certilieate. The application 
 states that there are two buildings (leeuiiied exclusively as dwell- 
 ings, the nearest entrance to which is within two hundred feet, 
 measured in a straight line, of the nearest entrance where the 
 tralhc in liquors was U> be conducted, and that the names of the 
 owners of such buildings \\-ere (histav Koerner and Edwin C. 
 Dusenberry, lessee and agent, and the consents of these gentlemen 
 that the applicant cariT on the I laflic, duly executed and 
 acknowledged, are attached to and form a part of the application. 
 The law provides that such ccuisent may be executed by the owner 
 or the duly authorized agent or agents of such owner of the 
 buildings. It is undisputed that Mr. Dusenberry did not have 
 the legal title of the building occupied by him, and was not the 
 agent of the jxTSdu holding the legal title, but was his lessee, and 
 the contention of the applicant is that, having the exclusive right 
 to the occupation of the premises for the time being, he was the 
 owner of the same within the meaning of the law, and had a right 
 to give the consent required by the Jjiquor Tax Law. 
 
 The owner of land is commonly understood to be the person 
 who has the legal title thereto, and not one who, for the time 
 being, has simply the right of possession. I think, if the Legis- 
 lature had intended a meaning o\' the tei'in "owner" different 
 from the ordinarily accejited meaning thereof, apt words woulf' 
 have been used to denote the qualili<at ion of such m(>auing. 
 Buildings are occnjiied in a great number, if not in a majority of 
 cases, by lessees Ihei-eoT having the exclusive right of possession 
 Tor a fixed term. Tf it were inten(le<l that leasees could give the 
 rf)nsents in question, I think the T^egislalure would have specifi- 
 cally so slated. 
 
Liquor Tax Law 409 
 
 The law also provides that there shall be filed with the applica- 
 tion for the certificate a consent in writing that such traffic shall 
 be carried on, on the premises for which the certificate is applied, 
 executed by the owner of the premises or by his duly authorized 
 agent. In this case the consent was executed by Gustav Koerner, 
 who held the legal title to the premises where the traffic in 
 liquors was to be carried on. If the lessee could execute such 
 consent, Mr. Van Ausdall, who was the lessee, would not require 
 the consent of Mr. Koerner, the holder of the legal title. I think 
 the word " owner " has the same meaning where the law refers 
 to the owner on whose premises the traffic is to be carried on 
 and the owner of the buildings within two hundred feet thereof, 
 and that such owner is one who has the legal title thereto. 
 
 In certain cases, the person holding the legal title could subject 
 his tenant without the tenant's consent to the annoyance of an 
 adjacent saloon. On the other hand, the tenant, if he had such 
 right, could subject the property of his landlord against his land- 
 lord's protest to the possible depreciation of his property by the 
 presence of a saloon. I can see many reasons why the consent of 
 both landlord and tenant should be required; but, as the law 
 now stands, I find it to be the legislative intent to require the 
 consent only of the holder of the legal title to the buildings 
 affected. The application must be granted, but without costs. 
 
 Application granted, without costs. 
 
 Supreme Court, Kings Special Term, November, 1898. Unreported. 
 
 In the Matter of the Petition of Henry H. Lyman to Revoke a 
 Liquor Tax Certificate of the Malcolm Brewing Company. 
 
 A motion by State Commissioner Lyman to revoke and cancel 
 a liquor tax certificate issued to the Malcolm Brewing Company 
 was denied to-day by Justice Smith in Supreme Court, special 
 term. The certificate authorized the defendant to traffic in 
 liquors on the premises inside the ball grounds known as the 
 Washington Park Base Ball Grounds, and the bar was to be 
 situated on the north side of Third street, 350 feet east of Third 
 
410 Decisions Relating to 
 
 avenue. Not only was liquor sold here, but also three hundred 
 feet away at the north end of the grand stand and separated by 
 a gate and fence. Evidence was given that the brewing company 
 sublet the privilege of selling liquors to one Henry Stevens. 
 
 Mead & Stranahan, for petitioner. 
 
 J. F. Bullwinkle, for respondent. 
 
 Smith, J. S. C. I think that the violations of the provisions 
 of the Liquor Tax Law which authorize the forfeiture of the 
 certificate must be such a violation as would justify the criminal 
 conviction of the holder of the tax certificate. The violation 
 complained of was committed by one Stevens. Upon the undis- 
 puted evidence, I think Stevens was selling liquor by virtue of 
 the certificate as agent of the Malcolm Brewing Company ; but 
 there is no evidence whatever that the sales complained of as a 
 violation of the Liquor Tax Law were made with the consent or 
 knowledge of the brewing company or by its authority. In the 
 absence of such evidence, there could be no criminal conviction of 
 the Malcolm Brewing Company for such violation. 
 
 Supreme Court, New York Special Term. Reported. N. Y. L. J. 
 
 December 24, 1898. 
 
 Henry H. Lvjian v. Young Men's Cosmopolitan Club and 
 Fidelity and Deposit Cojipany op Maryland. 
 
 Same v. True Friends Social and Literary Circle and Fidelity 
 AND Deposit Company of Maryland. 
 
 Same v. Unity League and American Surety Company. 
 
 Lawrence, J. While it is true that the only papers which can 
 be used on a motion for a retaxation by the clerk are those which 
 were before the clerk, as the plaintiff in obtaining the order to 
 show cause herein used affidavits not before the clerk, to-wit, the 
 joint affidavit of Messrs. Bage and Sanford and the affidavit of 
 Mr. Scott, each dated December 12, 1898, in which the ground 
 on which the clerk .adjusted the costs is stated, T think that the 
 
LiQuoE Tax Law 411 
 
 defendants were entitled to read affidavits in reply. If this 
 view, however, is erroneous there is enough before the court to 
 show that the clerk's adjustment was correct, and the taxation in 
 these cases should be affirmed on the merits, and the motion for 
 a retaxation should be denied with $10 costs to the defendants, 
 in each case. (See Comly v. The Mayor, etc., 1 Civil Pro. Eep. 
 317, per Barrett, J.) 
 
 Settle the order on one day's notice. 
 
 County Court, Monroe County, December, 1898. Unreported. 
 People op the State of New York v. Fereanto. 
 
 The indictment in this case charges the defendant with misde- 
 meanor, committed by the sale of fermented and malt liquors on 
 Sunday, December 6, 1896, at the city of Rochester. In the first 
 count it is alleged that he did " offer and expose for sale fev- 
 mented and malt liquors in quantities of less than five gallons at 
 a time to be drunk on the premises, on the first day of the week 
 commonly called Sunday, to divers ill-meaning and ill-disposed 
 persons, said persons not being then and there guests of any 
 hotel, contrary to the form of the statute, etc." The second count 
 charges that the defendant on said day " did sell and deliver 
 fermented and malt liquors * * * to a person, said person 
 not being then and there a guest of any hotel." In the third 
 count it is alleged that the defendant did " give away and deliver 
 fermented and malt liquors * * * to divers ill-disposed and 
 ill-meaning persons, said persons not being then and there guests 
 of any hotel." The three counts refer to the same transaction. 
 
 The defendant demurs to the indictment, among other grounds 
 because it does not contain a plain and concise statement of the 
 act constituting the crime, as required by section 275 of the Code 
 of Criminal Procedure. 
 
 Pomeroy P. Dickinson and Thomas E. White, for defendant. 
 
 George D. Forsyth, District Attorney, for the People. 
 
 Sutherland, Co. J. It is claimed that this indictment is 
 defective because it does not state the name of the purchaser to 
 
412 Decisions Relating to 
 
 whom the defendant is charged with selling liquor on the .Sunday 
 named herein, nor does it contain any allegation to the effect 
 that the name of the purchaser was unknown to the grand jury. 
 In an opinion written in 1837 by Chief Justice Nelson in Peo. v. 
 Adams, 17 Wend. 475, the Supreme Court of this State said that 
 in an indictment for selling liquor without a license it was not 
 necessary to state the name of the purchaser. And this view was 
 entertained by Chief J\i(lse Hunt, of the Court of Appeals, in an 
 opinion written in the case of Osgood r. The People, .39 N. Y. 449. 
 But in the Osgood case it appears that the appeal to the Court 
 of Appeals, upon the determination of which the opinion of Chief 
 Judge Hunt was written, involved only the form of the judg- 
 ment which was pronounced by the Court oT Sessions and did not 
 bring up for review the proceedings upon the trial. After 
 Osgood was convicted in the Court of Sessions of Niagara countj, 
 a bill of exceptions was made, and, pursuant to the practice then 
 followed, judgment upon the conviction was stayed until the 
 decision of the Supreme Court should be had upon the exceptions-; 
 a writ of certiorari was then sued out and the proceedings upon 
 the trial were reviewed and the conviction afflrmed by the 
 Supreme Court, which remitted the case to the Court of Sessions 
 with directions to proceed and render judgment thereon. No 
 appeal was taken by the defendant from the judgment of the 
 Supreme Court affirming the conviction. The Court of Sessions. 
 pursuant to the directions of the Supreme Court, rendered judg- 
 ment upon the verdict and from the judgment thus rendered ;i 
 writ of error was sued out from the Supreme Court which 
 affirmed the judgment that the Court of Sessions had pronounced, 
 and the appeal to the Court of Appeals was from the last men- 
 tioned judgment of the Supreme Court. On the second hearing 
 of the matter the Supreme Court had held that the writ of error 
 brought up for review only the form of the judgment, which 
 was held to be regular. Judge Clerke of the Court of Appeals 
 wrote an opinion in which he stated that the accused was not 
 entitled to two reviews of the same trial by the Supreme Court, 
 and that the Supreme Court upon the second hearing were right 
 in confining their attention merely to the form of the judgment, 
 and that the merits of the conviction were not properly before the 
 Court of Appeals for review. In this opinion of Clerke, J., it 
 appears all the rest of the judges of the Court of Appeals con- 
 curred. It would seem, therefore, that the statement made bv 
 
Liquor Tax Law 413 
 
 Chief Judge Hunt to the effect that upon a prosecution for an 
 unlawful sale of liquor the name of the purchaser is not n 
 material ingredient in the description of the act constituting the 
 offense, had not the controlling force which it would have, had the 
 court considered that the merits of the conviction were brought 
 up for review. 
 
 The Code of Criminal Procedure, § 275, states that an indict- 
 ment must contain " a plain and concise statement of the act 
 constituting the crime." And under an indictment for selling 
 impure milk the general term of the third department, in 1889 
 {Peo. V. Burns, 53 Hun, 275), held that this provision of the 
 Criminal Code makes it necessary to state the name of the pur- 
 chaser in such an indictment, or, if unknown, to allege such facr 
 accordingly. The court says (at page 278) : " The act sought to 
 be charged was the sale of milk of a grade prohibited by said 
 statute. To constitute such sale there must have been -i 
 purchaser, and the defendant was entitled to be informed by the 
 indictment who such purchaser was, so that he could be prepared 
 to disprove such sale upon the trial, if it had not been made as 
 alleged. The omission of such statement in the indictment con- 
 stituted a material defect, as, without it the defendant would bft 
 liable to surprise upon the trial and quite likely to be prejudiced 
 by such omission. The defect, therefore, must be regarded as mat- 
 ter of substance, and not merely of form, as it was the right of the 
 defendant to be informed not merely of the crime charged, but also 
 of the act which constituted it." In Peo. v. Stone, 84 Hun,l30, the 
 Supreme Court, General Term, fourth department, held that au 
 indictment charging the defendant with offering for sale fertilizers 
 below the grade required by statute, was fatally defective, among 
 other reasons because it did not contain the name of the person 
 to whom the fertilizer was offered to be sold nor any allegation 
 that the name of such person was unknown to the grand jury. 
 The court says (at page 137) : " The doctrine of the cases cited 
 seems to be conclusive upon this question, and to uphold the 
 defendant's contention that the indictment was defective in not 
 stating the name of the person or persons to whom the packages 
 of fertilizer were offered for sale, or, if their names were not 
 known, in alleging that fact." In People i\ Greig, 59 Hun, 107, 
 the defendant was the mayor of the city of Hudson and was 
 indicted for engaging in the manufacture and sale of intoxicating 
 liquors while holding such ofSce, contrary, it seems, to the jtrovi- 
 
414 Decisions Relating to 
 
 sion of the iliarter of said city. Tlie indictment did not state tlie 
 precise date of the alleged sale nor the name of the purchaser, 
 and the General Term of the third department set aside the 
 conviction, holding that the indictment Avas defective in that the 
 exact nature of the charge was not therein set forth. And the 
 court refer with approval to the language of Judge Ingalls in 
 People V. Burns, supra, which has been quoted, to the effect that 
 the name of the purchaser is a necessary ingredient in the 
 description of the act constituting the offence. The grand jury 
 of the county of Wayne indicted one Stark for libel. The indict- 
 ment contained no averment as to the manner of publication, 
 whether by writing, printing or posting, or otherwise than by 
 mere speech, or of the person or persons to whom it was addressed 
 or by whom it was seen or read, or that the names of such persons 
 were unknown to the grand jurors. The judgment of conviction 
 was reversed and the indictment was set aside, the General Term 
 of the fifth department (People v. Stark, 59 Hun, 51) holding that 
 the indictment was fatally defective for the want of a sufficient 
 description of the act constituting the crime sought to be charged; 
 and in the course of his opinion Mr. Justice Corlett by way of 
 illustration, refers to prosecutions for the illegal sale of 
 intoxicating liquors, and assumes that in indictments therefor it 
 is essential to name the purchaser, or to state that the name is 
 unknown to the grand jury, if such be the fact. 
 
 There is nothing in the statute nor in the character of the 
 offense itself, which justifies the adoption of a form of pleading 
 less liberal to a defendant when he is prosecuted for the illegal 
 sale of liquor, than is required when he is prosecuted for the 
 illegal sale of other commodities ; and if the name of the purchaser 
 is known, it should be stated in the indictment in order to identify 
 the charge, lest the grand jury indict for one offense and the 
 defendant be tried for another ; to enable the defendant to prepare 
 for his trial ; and in order that his conviction or acquittal may 
 inure to his protection should he again be indicted for the same 
 act. And, in my opinion, an indictment for the unlawful sale 
 of liquor which does not state the name of the purchaser, if he is 
 known to the grand jury, fails to fulfill the office which it is 
 intended to perform under our present system of criminal 
 practice. 
 
 The demurrer of the indictment must be allowed, and sustained, 
 and judgment may be entered accordingly. 
 
Liquor Tax Law 415 
 
 Supreme Court, Onondaga Special Term, December, 1898. Reported. 
 
 25 Misc. 638. 
 
 Matter of the Petition of Heney H. Lyman, as State Commis- 
 sioner of Excise, for an Order Revoking and Cancelling Liquor 
 Tax Certificate No. 31,357, Issued to Jacob Dibffbnbackee. 
 
 Liquor Tax Law — Illegal sale on a piazza which was possibly on State land. 
 
 Where a person authorized to traffic "in liquors in quantities less than 
 five wine gallons, no part of which shall be drunk on the premises where 
 sold or in any outbuilding, yard or booth or garden appertaining thereto 
 or connected therewith," sells liquor in his building adjoining the towpath 
 of the canal and permits the purchaser to drink it on a piazza fronting on 
 the canal, and formed by the projection of the upper story of his building 
 over the lower one, and which piazza was the usual approach to his store 
 and bar, the statute is violated; and the fact, that the piazza may be on 
 State lands and has been used by the State authorities as a place to 
 deposit tools temporarily, is not a defense, where the State has taken no 
 steps to remove the piazza. 
 
 Petition for the revocation of a liquor tax certificate. 
 
 Mead & Stranahan, for petitioner. 
 
 E. La Grange Smith, for defendant. 
 
 HiscocK, J. The following facts are undisputed : The defend- 
 ant took out and at the time of the occurrences hereinafter 
 mentioned held a liquor tax certificate which authorized him to 
 trafiic " in liquors in quantities less than five wine gallons, no 
 part of which shall be drunk on the premises where sold or in any 
 outbuilding, yard or booth or garden appertaining thereto or 
 connected therewith." His -premises consisted of a two and one- 
 half-story frame building situate adjacent to the towpath of the 
 canal. The upper story projected beyond the lower one, thus 
 roofing and inclosing a piazza upon the front which adjoined and 
 led to the lower one. In this lower one was defendant's store 
 and place of business wherein he had a bar. This piazza was 
 sometimes used by State authorities or others as a place of 
 temporary deposit of tools or goods, but it was the usual if not 
 only means of approach to defendant's place of business. Upon 
 one or more of the occasions in question agents of the excise 
 department stepped up to defendant's bar and asked for and 
 
41G Dkcisions Relating to 
 
 received glasses ol' whiskey, which they were told to, and did step 
 out upon the piazza and drink, then returning to the bar and 
 paying therefor. This course of business had, it is stated in 
 defendant's brief, been commonly pursued by him for two years. 
 
 In addition to these facts it is claimed by defendant that this 
 piazza was in whole or part upon State land, and by the petitioner 
 that some of the liquor was drunk at the bar and not upon the 
 piazza. I propose to consider the case uj)on the latter point, 
 however, in the aspect most favorable to the defendant. 
 
 He urges that the piazza was not part of his premises and was 
 not any " outbuilding, yard, booth or garden appertaining thereto 
 or connected therewith." This contention, however, seems to call 
 for altogether too narrow a construction of the statute. Xo 
 reasoning can make it much plainer than the mere statement of 
 the facts docs, that this piazza was connected with, and used as, 
 and was a part of defendant's ]iremises. If it was upon the 
 State land removal thereof could perhaps be enforced, but until 
 that was done, and certainly as against everybody except the 
 State, proceeding in a lawful manner it was within the posses- 
 sion of and under the control of defendant. The fact that by his 
 license, and without compensation, others were occasionally per- 
 mitted to use it was not sufBcient to destroy this proprietorship. 
 
 The prayer of the petition is, therefore, granted, with costs. 
 
 I'etition granted, with costs. 
 
 Court of Appeals. Reported. 157 N. Y. 368. 
 
 Tub People op the State op New York ex rel. William H. D. 
 Sweet, Appellant, v. Henry H. Lyman^ State Commissioner of 
 Excise, Respondent. 
 
 1. Civil service — Constitution and statute — Probationary appointment. 
 The adoption of the civil service clause of the Constitution of 1894 
 
 (Article 5, sec. 9) did not repeal or suspend the existing civil service 
 statute and rules so as to render a probationary appointment improper or 
 llle.?al as a test of merit and fitness. 
 
 2. Special agent in Excise Department — Confidential position — Veteran. 
 The position of special agent In the excise department, under the Liquor 
 
 Tax Law (Laws of 1896, chap. 112, sec. 10), is In its nature a strictly 
 
Lk.uou Tax Law 417 
 
 confidential position and therefore is not within the statutory provisions 
 (Laws of 1S96, chap. S21) promoting the appointment and retention of 
 veterans in the civil service of the State. 
 
 3. Status of position not affected by civil service classification. 
 
 The actual and statutory status of the position of special agent in the 
 excise department as a confidential position is not affected by the classi- 
 fication of the position as competitive, by the State Civil Service Com- 
 mission. 
 
 People ex rel. Sweet v. Lyman, 30 App. Div. 135, affirmed. 
 
 (Argued October 4, 1898; decided December 6, 1898) 
 
 Appeal from an order of the Appellate Division of the Supreme 
 Court in the third judicial ufpartment, entered March 24, 1898, 
 affirming an order made at Special Term denying the relator's 
 motion tor a peremptory writ of mandamus commanding the 
 respondent to reinstate him as special agent in the excise depart- 
 ment. 
 
 The relator is a citizen of this State and an honorably dis- 
 charged soldier of the Union army, who served in the late war 
 of the rebellion. He iiassed a civil service examination for the 
 position of s])ecial agent in the excise department, was notified 
 thereof by the civil ser\-ice board, and that his name was on the 
 eligible list for appointment. Subsequently the State Ci.immis- 
 sioner of Excise wrote him as to his name being on the civil 
 service list lor appointment as sjiecial agent, and made inquiry 
 in the letter as to his jiast, and afterwards had a personal inter- 
 view with him. Afterwards, and on September 2.5, 1S9G, the 
 commissioner appointed him for the probationary term of three 
 months, and assigned him to certain duties, which he undertook 
 to perform. On the nineteenth of the following December, and a 
 few days before the expiration of the three months, the 
 respondent wrote to the relator stating that his efficiency and 
 capacity for the work during liis probationary term of three 
 months had not been found satisfactory, and that in accordancs 
 with the terms of his appointment and the civil service rules 
 under which it was made, his term of service would cease on the 
 twenty-third of December. 
 
 More than three months after the relator had left such employ- 
 ment, this proceeding was instituted. The petition for the writ 
 alleged his citizenship; that he was an honorably discharged 
 soldier; that he was examined liy the civil service board, which 
 certified that he was eligible for appointment; that he was 
 
418 Decisions Relating to 
 
 assigni'd lo duly a I ( (gdeusbuig, X. Y. ; that lie properly rendered 
 the KurvieL'8 re(juii-i'd iu the position; lliat he received notice from 
 the del'eudaut stating his elficiency and capacity were not satis- 
 factory ; that no notice of any charges against him was ever 
 given, and no such charges were made; that he was competent to 
 till the position, and that the defendant refused to reinstate him. 
 Most of the allegations of the jietition weie admitted by the 
 defendant's answer, except those relating to the competency of 
 the relator to discharge the duties of the jjlace. It then set up 
 affirmatively that he was incompetent, inefficient, and performed 
 cerlain improper acts during his service under such ijrobationary 
 appointment. 
 
 Upon the writ, petition and return the matter was brought to 
 a hearing before a t-'pecial Term, when the relator asked for an 
 alternative writ if the court held that any issue of fact arose upon 
 the return. Upon the hearing the Special Term denied the 
 relator's applicatidu lor a peremptory writ, and did not award 
 an alleinative one. From that determination an appeal was 
 taken to the Appellate Division, where the order of the Special 
 Term was athrmed. That court held that the relator was not 
 remo\'ed from the position of special agent within the meaning of 
 the Veteran Acts; that he was properly appointed, but that his 
 appointment was a jirobatiouary one for three months, and that 
 as that period had expired, he was not removed from the position 
 to which he was assigned, and, therefore, could not be reinstated 
 under the provisions of chapter 821 of the Laws of 1896. 
 
 Eugene D. Flanujun for appellant. The defendant's powers 
 
 in regard to the appointment and removal of veterans from office 
 
 or emi)]oyraent under the Civil Service Law are purely of a 
 
 ministerial nature. {People ex rcl. v. Common Council, 78 ^\ Y. 
 
 33; People ex rel. v. Couirs., 149 N. Y. 26; Nutfall v. Siniis, 31 
 
 App. Div. 503; L. 1883, ch. 354; L. 1896. ch. 112; Coolev 
 
 on Const. Lim. 52-54; People ex rcl. v. Pice 135 
 
 N. Y. 473; Ray v. Jeffersonville, 90 Ind. 572; Orider v. 
 
 Tally, 77 Ala. 422; Const, art. 5, § 9 ; Rogers v. Conunoii 
 
 Council of B., 123 N. Y. 175, 186 ; Chittenden v. Wurster. 152 N. Y. 
 
 345; Matter of Kej/mer, 148 N. Y. 219-226; Pniird v. Mayor, 
 
 etc., 96 N. Y. 581; RatMone v. Wirth, 150 X. Y. 468.) Relator 
 
 was holding a position by appointment within the meaning of 
 
 t 
 I 
 
Liquor Tax Lj\.av 410 
 
 chapter yi'l, Laws of ISiJG, and such position was not of a eou- 
 fldential nature. The classification of this position in the com- 
 petitive list by tlie civil service board was proper. {VJiittouivu 
 V. Wurstcr, 152 N. Y. 345, 381; People t.r nl. v. Tobey, 153 X. Y. 
 381; People ex rel. v. Wriglit, 150 N. Y. 44-1, 449; L. 1SS3, ch. 354; 
 2[attey of Keijnicr, 148 X. Y. 219; People e.e rel. v. Rohtrts, 14S 
 N. Y. 360; 17 Am. & Eng. Ency. of LaAV, 248; Wood v. City of 
 Brooklyn^ 14 Barb. 425; C'o^rcu v. V/7. of West Troy, 43 Barb. 48; 
 Clarke v. City of Rochester, 2.s X. Y. <J05 ; People ea- rel. v. Adams, 
 133 X. Y. 2U3, 207; Arthur v. MoUer, i)7 U. S. 3G8; First Annual 
 Report U. S. Civil Service <_'onirs. 11; People v. Poylhm, 16 Abb. 
 X. C. 119; Roejers v. Common Council of B., 123 X. Y. 173; People 
 ex rel. v. Roberts, 148 X. Y. 363; Peek v. Belknap, 130 X. Y. 394- 
 399.) The relator having been appointed as the result of a com- 
 petitive examination, is entitled to the protection afforded him 
 by chapter 821 of the Laws of 189ij. and cannot be removed from 
 the position of special agent until after a hearing upon cluuges 
 made and notice given, and tlie action of defendant in removing 
 relator without such notice and hearing is illegal and voiu. 
 {Matter of Keymer, 148 X. Y". 219; People ex rel. v. Morton, 148 
 X. Y. 156 ; People ex rel. v. Bd. of Health, 153 X. Y. 513, 520 ; 
 People ex rel. v. Thompson, 94 X". Y. 451 ; People ex rel. v. Fire 
 Comrs., 72 X'. Y'. 445; Peop)le ex rel. v. French, 51 Hun, 347 ; Clmse 
 V. Lord, IT X". Y. 18; flatter of Liringston.. 121 X. Y. 104 ; Curtin 
 V. Barton, 139 X. Y". 505; Chittenden v. Wurstcr, 1.52 X. Y. 345, 
 362; L. 1896, ch. 821.) Relator having been appointed to his 
 position as the result of an open competitive examination, is 
 entitled to retention in same until removed in the way and 
 manner prescribed by chapter S21 of the Laws of 1896, and the 
 summary action of defendant was illegal and void. (Chittenden 
 V. Wur.stcr, 152 N. Y. 345-357; flatter of fiieeelcy. 12 Misc. Rep. 
 174 ; 146 X. Y. 401; Matter of Keymer, 148 X. Y. 219, 226 ; Const. 
 of 1894, art. 5, § d; People ex rel. v. Morton, 148 X. Y. 156 ; People, 
 ex rel. v. Bd. of Health, 153 N. Y. 513, 519.) Relator waived no 
 rights which he had. (West v. Piatt, 127 Mass. 376; Hanwiett v. 
 Linneman, 48 X. Y. 399; Titus v. G. F. Ins. Co., 81 N. Y. 419; 
 Hamlin v. Sears, 82 X. Y. 327 ; Shapley v. Abbott, 42 X. Y. 443 ; 
 Tibbie v. Anderson, 63 Ga. 41 ; Payne v. Burnham, 62 N. Y. 69.) 
 
 Theodore E. Hancock for respondent. The civil service laws, 
 and rules and regulations established thereunder, provide for 
 conditional or probationary appointments to the civil service of 
 
4-(l l)K(jiSi()\s Ki:i,ATiXG TO 
 
 this Sliiic. (].. iss;;, (•!.. ::a. S l'; I'loph- c.,- id. v. Cohh. Vi Apv- 
 ])i\'. ."lit. I The rciatoi-'is sci'n let' w;is :i |jr(il);i1 innary niie and he 
 was not ijyrnianently apiioiiileil. ilis apimintnient ((Msi-'l 
 bcrausc he "was di.sijualitied, and liis conduct and capacily weiv 
 not salislacdiry. (Const, ai'i. 5, § 9.) The ndator was never 
 removed from his position. He \Nas never permanently 
 appointed. (L. 1SS4, t-h. 410; L. 1S!_)4, ch. TKi; L. isilG, ch. s2l.) 
 The I'uuctiou iicrlormed by the Stale ('oiumissidncr of Excise, in 
 determining that the appelhant's " conduct and capacit.v " were 
 not satisfacUiry, was a judicial determination, and involved thv; 
 exercist' ot discrt'tiou, and such discretion canudt be reviewed by 
 a writ (if mandaiiins. [People <■.)■ rrl. v. Cdiiiiiioii Counril. Is X. Y. 
 39; Hnirland v. IJI(lrC(U/i\ 4;> N. Y. 4."i7 ; I'cnplc en re?, r. ('imirs. 
 14!> X. Y. ;!(•; I'lojilc c.r rrl. v. Maijor. etc.. 14'.l N. Y. i'l.'j ; In re 
 HaehJer v. X. Y. P. E.reh.. 149 N. Y. 414; People c.r rel. v. 
 Vroiinrcll, H»- N. Y. 477: I'cople c.r irl. v. Brush, 14G X. Y. 60.; 
 
 Maktix, J. At the time of the iclalcir's appointment chap- 
 ter ;'.."i4 (.if tlic l^aws of iss;!, as ameniled, ]irovided for the 
 appointment oT commissioners who should constitute the New 
 York civil «('r\icc commissidii. It then made it the duty of 
 siicli ciMiniiissiiin lo aid the iiUNcriior in preparing suitable rules 
 for carrying the statute into effect; declared that such rules 
 slioiijd iiro\id(' Tor ojien, c(iiiip<'titive examinations for testing the 
 fitness of applicanis for pusitidus in the public service; that all 
 the offices, p'laces and employments should be arranged in classes, 
 and liiat tlieie should lie a ]ieri(iil of pi'obation before any absolute 
 ajipointment or emiiloymenl. AYhen the relator was appointed, 
 one of the rules eslablislied by the civil service commission was 
 as foliows: "i:very original appointment or employment in the 
 civil srrrire shall be for a jnubationary term of three months, at 
 the end (if Avliicli time, if the conduct and capacity of the person 
 ap])oinie(l (ir emphiyed shall have been found satisfactory, the 
 probalidner shall be absdlnlely appointcnl or emphiyed, but other- 
 wise his appointment shall cease." It is manifest that the inirpose 
 of the statute .-ind rule relaling (o probationary appointments was 
 to enable the appointing ollicer to ascertain and correct any error 
 or mistake df himself or df the civil service commission arising 
 from Ihe inefflciency of a cainlidale certified as eligible where he 
 
 miglil pro\(' inc ]ielent to discharge the duties of the place to 
 
 which he was appointed. It seems to be practically admitted that 
 
Liijrou Tax Law 421 
 
 if the Nlalutc ol' 1SS;_! and tlu' civil .service rules eslabli>slied in 
 pm'suaucc of it wci-e in t'orct' and valid A\lien the relator's 
 probationary term ended, the delerniination of tlie learned 
 Appellate Division was right and slionld lie afflrnied unless the 
 question is controlleil by tlie ^'eterans' Act, which will bo 
 sul)se(inently considered. 
 
 J^nt it is contended that the provisions of the Constitution of 
 1S!)4 relating to this subject have susiiended or repealed the law 
 and r\!les existing at the time, so tliat the defendant had no 
 authority to make a probationary appointment. In other words, 
 the apiiellanfs claim is that, having been appointed by the 
 respondent in pursuance of a certificate of his eligibility furnished 
 by the civil st'r\ice conniiission. his appointment could not be 
 liniiied (o any proliationary term, and, therefore, he could not be 
 rtMueved except for cause shown after a notice and hearing. 
 
 Thus, the tirst point involved in this c(intr(i\ersy is whether 
 the amended Constitution repealed or suspended thi> existing 
 si^itnte and rules of the civil service commission so as to render 
 a probationary appointment improjier and illegal. Section d of 
 article ."i of the Constitution jiroNides: "Appointments and 
 promotions in the civil ser\ice of the !>tate. and of all the civil 
 divisions thereof, including cities and villages, shall be made 
 according to merit and fitness to be ascertained, so far as 
 prat'ticable, liV examinations, which, so far as jiractieable, shall 
 be competitive; provided, however, that honorably discharged 
 soldiers and sailors from the army and navy of the United States 
 in the late cixil ^\-ar, who are citizens and residents of this State, 
 sliall be entitled to preference in appointment and promotion, 
 without regard to their standing on any list from which such 
 appointment or promotion may be made. Laws shall be made to 
 provide for the enforcement of this section." 
 
 The effect of this provision upon the existing statute and rules 
 of the civil service commission has been se\eral times considered 
 by this court. In People v.v rd. 2IcCJ<lhi)id v. Ruhrrts (14S X. Y. 
 3(J0. o(i.">) it lield that chapter ;>."i4 of the Laws of L*>S3, as amended 
 by chapter (isl of the Laws of 1S04, constitutes a general system 
 of statute law ajiplicable to appointments and promotions in 
 every department of the civil service of the State, with such 
 exceptions only as are specified in the statute itself, and that by 
 section Ki of article 1 of the Constitution of 1S04, that act was 
 continued in force as the law of the State, subject only to such 
 
■122 Dbcisioxs Kelating to 
 
 aUenitious :is the I.eyislaturc might make. In ili'li\<-i-iiig the 
 opinion in that ease Judge O'ltitiEN .said: "It is quite clear, also, 
 that the civil ser\ice statutes constitute a general system of 
 statute law applicable to appointuuiits aud promotions in every 
 department of the civil service ot the Stale, with such exceptions 
 only as are specified in the statute itself.'' In Cliittcttdcii v. 
 Wurstrr (152 N. Y. 345, 355) it was held that the 
 statute of 1SS3 was in force, aud provides the necessary 
 machinery for carrying the provisions of the Constitution 
 into elfect, and the doctrine of the McClelland case 
 in that resjiect was re-aflirmed. In the f^invlcij Co.sc (12 Misc. 
 Rep. 174, ISl ) -Judge Herrick discussed this provision of the 
 Constitution. That case was affirmed l»y this court without 
 opinion ( 14G N. Y. 401), aud his opinion was especially com- 
 mended by .luilge Uartlext in the Kci/mcr r«.s-c (14S X. Y. 219, 
 224). In tha,t case Judge IIerkick said: " The civil service law 
 of the State, as it was i>rior to the adoption of the new (_N insti- 
 tution, is, with the except ion of the acts that have been passed 
 relative to suldiers, in harnnmy with the Ccmstitution." That 
 jirincijile was a<l(ipl('d liy (his court in aiiirming that case. Thus, 
 we have its aiithority as declared in at least three of its decisions, 
 establishing the iir(i|)osition that the act of 1SS:>, so far as it 
 affects the (piestion under cimsideration, is, and has been, in 
 operation and edect since the adoption of the new Constitution, 
 as well as l.KMore. 
 
 ^^ <■ think this proposition should be sustained upon principle, 
 as well as u]ion tlie authorit)' of our former decisions. The 
 declaration of the Constitution is that appointments and promo- 
 tions shall be made according to merit and fitness. The obvious 
 purjiose of this jiro\ision was to declare the principle upon which 
 ])romotions and appointments in the public service should be 
 made, to recognize in that instronient the princiiJe of the existing 
 statutes upon the suliject, and to establish merit and fitness as the 
 basis of such apjiointments and iiromotions in place of their 
 being made U];on ]iartis:tn or ]iolitical grounds. (Kccord Consti- 
 tutional Con\-ention, vol. 5, p. 2444; vol. (>, p. 2552, ct .s-C(/.) It 
 then declares that merit and fitness shall be ascertained by exam- 
 iiiiifions, iMiil also V<<v exteni (o which tliey sliall be thus 
 determined. The extent to which examinations are to control 
 is declar<'d to be only so far as practicable. This language 
 clearly implies that it is not entirely practicable to fully deter- 
 
Liquor Tax Law 423 
 
 mine them ia that way. It was the purpose of its framers to 
 declare those two principles and leave their application to the 
 direction of the Legislature. As was said by the chairman of 
 the committee to which this amendment was referred: "It 
 seemed best to the committee, after very careful and repeated 
 consideration, to leave the application of the principle (of merit 
 and fitness) to the good sense of the Legislature — the application 
 of it." Thus it is apparent, not only upon the face of the 
 provision itself, but from the debates in the constitutional conven- 
 tion, that the framers of this amendment did not intend to 
 absolutely determine how the merit and fitness of appointees were 
 to bs ascertained and determined. The Constitution provides 
 that to an extent those questions are to be determined by an 
 examination, but it is obvioiis that it was understood at that 
 time that it would be impracticable to fully determine the merit 
 and fitness of an employee or appointee by a mere examination, 
 whether competitive or otherwise. It is to be observed that the 
 provision of the Constitution is that the merit and fitness of the 
 applicant or appointee shall be ascertained in the manner stated 
 so far as practicable, that is, in part at least, if they can be even 
 partially ascertained in that manner. The words " so far aa 
 practicable " plainlj- relate to the degree or extent to which the 
 examination should control. The provision is not that the exam- 
 ination shall be the basis of determining merit and fitness when 
 or idxcrc, or in such cases as it is practicable, but that in all 
 cases they are to be ascertained by an examination, only so far 
 as practicable. In other words, it does not declare that the 
 examination shall control in ascertaining merit and fitness in 
 any or all cases where it is practicable, but that the qualifications 
 of the candidate shall be ascertained in each case by an exam- 
 ination to the extent and only so far as it is practicable, and 
 consequently sufficient to insure the selection of proper and com- 
 petent employees. The (^Constitution plainly implies that other 
 metliods and tests are to be employed when necessary and 
 calculated to fully ascertain the merit and fitness of the appli- 
 cant. If a probationary term or other method is necessary to 
 enable the af^pointing officer to fully or correctly ascertain the 
 merit and fitness of the applicant, the plain and clear intent of 
 this provisifin is that it shall be employed. 
 
 Assuming then that the framers of the Constitution contem- 
 plated that other methods might also be employed, surety 
 
424 Dkciskin's "Relating to 
 
 it can not be pro|)crl.y said that the I rial of an applicant for a 
 probationary period is noL an appropriate method of testing and 
 thus correctly ascertaining his merit and fitness. iJcsides. it is a 
 reasonable method. Indeed it is the usual one. What good 
 business man would employ an assistant, a clerk, or even a 
 laborer for a period which he could not limit or control without 
 adopting that method of ascertaining his (lualiflcations for the 
 place? There can be but one answer. Therefore, that the method 
 provided ^v the statute and the rules of the civil service com- 
 mission is appropriate and well calculated to materially aid an 
 officer or department in determining the merit and fitness of an 
 employee, can not be successfully denied. 
 
 Moreover, when this constitutional provision was adopted, and 
 when it was proposed in the convention, the statute and civil 
 service rules lo wliii.h we have adverted ^\'ere in force and were 
 well known to and understood by the framers of that provision. 
 Hence, it is but reasonable to suppose that when it was proposed 
 they had the existing statute and rules in view, and did not 
 intend to supei sede or intei fere with them. In the words of Judge 
 O'Brien: "It is evident from the languai;e of the new provision 
 of the Constitution and from the debates in the convention which 
 followed its introduction into that body, that it was framed and 
 adopted with reference to existinsi' laws, which were intended to 
 give io it immediate practical operation. So that in adopting the 
 new (^institution, the peo]ile, in their original capacity, decreed 
 that, thereaftei-, all the departments of the government should be 
 brought within the ojieration of existing laws on the subject of 
 appointments."' (148 N. Y. 3G9.) 
 
 While it is true that under the Constitution the merit and 
 fitness of an a])plicant for a]ipointment in the civil service of the 
 State or its civil divisions are to be ascertained, in part at least, 
 by an examination, competitive or otherwise, except in cases 
 where such an examination would be wholly ineffectual to deter- 
 mine those questions, still, even in cases where an examination 
 may be had, it is to control only so far as merit and fitness may 
 be ascertained by a mere examination. As the Constitution 
 plainly discloses that other methods were expected to be employed 
 to insure proper appointments in the civil service of the State, 
 doubtless it was the then existing method of probationary trial 
 that was in the minds of its framers. 
 
 Again, when we examine the history of the reform in the civil 
 
J.TQuoi; Tax Laav 425 
 
 service, we find that tlie question of its propriety had iM'i&eii and 
 beeu considerably discussed in tliis country for a consider;, Lie 
 time before the year 1S71. In the month of March in that year 
 Congress passed the first civil service statute enacted in this 
 country. That statute, however, Mas short and amounted to but 
 little more than a mere declaration of the principle of civil service 
 reform, with brief and what Mere regarded as insufficient 
 provisions as to the means of carrying it into effect. It remained 
 in that situation until ISs:!, when by reason of a continued 
 agitation of the subject, the statute was extended and enlarged 
 so as to include substantially all the provisions (jT the present 
 law upon the subject. In that year the Legislature of the State 
 of Xew York also passed the act under consideration Avhirh is, 
 in all its essential particulars, like the act of ('ongress. That 
 statute has been in full operation and eifeet in this State since 
 that time, M-ithout amendment except in some minor particulars. 
 Thus, although the act of 1SS3 was, to an extent, considered as 
 tentative when jjassed, the experience of thirteen years under 
 its provisions, both in relation to the State and Federal 
 governments, had not, when the State Constitution was amended, 
 seemed to its friends to require any radical or substantial 
 change. Both the Federal and State statutes embodied the 
 principle or method of probationary trials as a means of deter- 
 mining the merit and fitness of candidates. This method had 
 also been employed in the civil service of Great Britain since 
 IS.j.j. The English civil service rules in existence then and 
 since provide that no person shall receive a formal appointment in 
 the civil service until his practical capacity and disposition 
 have been tested by a probationary trial of six months, 
 at the expiration of which, if not satisfactory, he is to be dropped. 
 Practically the same provision is included in the Federal statute 
 as well as in the statute of this State. It is also included in the 
 civil service rules in the cities of Albany, Brooklyn, Poughkeepsie, 
 Elmira, Kochester, Schenectady, Troy, Yonkers and other cities 
 of the State. Indeed, I have been unable to find any common- 
 wealth or political division where the principle of civil service 
 reform is in force that does not include as a method of determin- 
 ing the qualifications of an appointee, the test of a probationary 
 trial. 
 
 The propriety of this method is also particularly recognized by 
 such civil service advocates as Dorman B. Eaton and Silas W. 
 
41-'(> DiO(''rsK),\'s IkEi.ATiNi; to 
 
 Burt. The i'orniei-, one of (lie carlieNt ;iud iiHist cai'iifsl advociites 
 of ci\il service refoi-iii, in siihslniice, s:ivs that tlie |ici-i<Ml of pro- 
 bation belore acliial appointiiieiil is iieei-ssar.v lo exclude an 
 applicant, it any should have passed the cduipcf iliou successlully 
 who are found wantiuji' in pradical aliility for the work. ( Imicv. 
 I'olitical i~lcieuee, vol. 1, 4^."").) Tlie latter, who for ujure than 
 thirty-five years has been interested in tlie i-eldnii of the civil 
 service, and under whose direction the first civil service examin- 
 ation in this country was had, in speakinj;' of the subject of 
 proba,ti<inary trials, says: "This limitation (referring in the 
 seh'ction froiii Ihe llircc persons standing hi.nliest ) reduced the 
 opporlunities for fa\'oril ism to the lowest j)oint deemed |)iissible. 
 since a restriction to the one |ierson standiui;' liiiihest would annul 
 the ollicer's discretion and i-es|ioiisibility tor the appointment, 
 wliile the tliree names ^a\'e a disci-el ionary i-auj;(' that has liy 
 lonu trials been a]>])ro\cd as suilicieiil, ])articularly since it was 
 supplemented by appointmeut for i probationary ]iei-i<id only 
 before a permanent (enui'e \\as gix'en. Tliis ])r((bation was an 
 essential part ol the examination and has in jiractice shown how 
 satisfacloi-y Ihe antecedent jirocedure was since the number of 
 those who were drojipeil from serxice during' or at the end of 
 the jirobationary ]ieriod has been so inconsiderable that it may 
 be disic^arded." (Kejiort of ]S;I7.) Thus we tind not only that 
 the ci\il service ruhs of (Jrea! J'.i-ilain, the acl of Congress, th3 
 slalule of our own State, the ci\'il ser\ice rules of the T'nited 
 Stales, <il' the Slate and of the cities thereof, proxide for a proha- 
 tionai'y lesl, but the early and <-ontiu)ious friends and advocates 
 of civil serxice refoi'in also concur in re,L;ar<lin!j, the probationary 
 ])eriod as nsefnl and necessary to the projier administration of 
 the cixil service. Tlx'refore, wjien we consider the laws and cixil 
 service rules exist in};' when the constitutional auuMidment was 
 adopted, the ])osition taken n])on this sid)jecl liy its friends and 
 adx'ocates, and Ihe };uarded la.ni;nai;e of limitatimi eni]il(iyeii in 
 the amendment, there xxonid seem lo be no doubt as to the 
 pnrjiose id' the amemlment, nor that it was intended to continue 
 the hithei-fo unif(U'm I'ule as to iirobal ionary trials. 
 
 This is made more clear when we remendiei' that the individuals 
 and or!j,ani7.ations thai weir nr.i;ine- this amendment had jireviously 
 induced the Lcf^ishiture to adoi)t the slalnle of IS.SIt and 
 thi- statutes amendin;;' it, and tliat they \x ere also inlluential in 
 
Liqt;or Tax Law 427 
 
 shaping the rules which were adopted by tlie civil service com- 
 tnission. 
 
 Obviously there are many positions in tht' civil service where 
 the merit and fitness of an applicant cannot be ascertained Avith 
 any certainty l)y a mere examination under the rules of the civil 
 service. It seems apparent that what was intended by this 
 provision of the (Constitution was that merit and fitness should 
 be the basis of appointments of public officers and employees, and 
 that those qualities should be ascertained and determined, so 
 far as they could be practicably, liy such an examination, but that 
 other and further methods slionld be e!n)>lo_ved when necessary to 
 secure efficiency of service. It is manifest that actual trial of an 
 appointee in the place which he seeks would furnish better means 
 to accurately determine his fitness and merit than would any 
 mere examination that could be had. (Can it lie said that the 
 purpose of this provision v\-as to jirevent a jirobationary trial to 
 discover the fitness and merit of an applicant, in view of the lan- 
 guage employed, and of the extent to ^'I'hich probalionai'y terms 
 were then pro\i<1<'d for? It is obvious that in m:iuy cases an appli- 
 ciuit for a position in the civil service of the State or of a 
 munici]-ality might be entirely qualified so far as his attainments 
 disclosed l)y a civil service examination were concerned, and still 
 be wholly unfit to occupy the position liy reason of indolence, 
 inadaptability to the service, garrulousness, want of character, 
 experience, tact, integrity, or lack of a i)roper disposition, or the 
 existence of habits which would render him quite unfit to assume 
 the duties of the position and yet not be actually incompetent. 
 This court has held that where the relations between the officer 
 and the ajipointee are confidential this provision of the Constitu- 
 tion tioes not apply, but fails by reason of the impracticability of 
 determining merit and fitness for such a position by a civil service 
 examination. ( I'voplc cj- rd. Criimiiicij v. Palmer, l."2 X. Y. 217.) 
 In ChiftriKlcn v. '[]'i!rst('r ('l.")2 X. Y. 'Mo, ;'>50), in discussing this 
 question, Judge Hakjht said: "A candidate may be ever so com- 
 petent and still lack many of tli?' necessary elements of a 
 trustworthy officer; he nray lie ever so learned and still lacking in 
 judgment and discretion; he may l)e discreet and still without 
 character; lie may be honest and yet meddlesome and a person in 
 whom you cftiild not confide." 
 
 If tliis j)rovision of t!ie Constitution is absolute, and iiermanent 
 appointments must be made whenever the civil service board 
 
4l'S DlOCISKJXS 1{I0I,ATIN<; TO 
 
 ccrtilics Hint an applicant is eligible, Ihrii, as the ( 'onsi itution 
 makes no cxreplitiii as t(i (■oiitidcntial cli-i-ks or iMiipldVces, no 
 reason cxisls wliv it nnisl iml be cnforci'd in I hose cases as well 
 as in any other. 1( is true the slatnle in relation to veterans 
 I>r(>vi(!es that i1 shall not apply U> a jn-ivale secretary, depnly of 
 any official or deiiarlnieni, or to any oilier jieison holding a 
 strictly confidential position. That, h()we\cr, is a mere declaration 
 of the Legislature, and if the Constitution of 1S!)4 relates to ail 
 ap]iointmen(s and jMisilions in the civil ser\ice, and makes the 
 examination by the civil service commission as to merit and fitness 
 tlie measure which controls, then the ^'eterans■ Act, so far as it 
 relales lo confidential ajipoinU'es, is in conllict with that 
 pro\ision and is in\alid. 
 
 The nmnircRl pur|iost' of the ci\il service statutes and of the 
 amended Ciinsliiiition was to impro\-e the civil sei\ice of the 
 Stale by securing employees of greater merit and litness. There- 
 foi-e, it is ipiite as much williiu llieir ])urpose and |)rovisi<ms that 
 an examinalion should not conlrol when other and better methods 
 would secure an impro\ed service, as that it should not apjdy to 
 con1iii(MitiaI j)ositions. If il does not ajijily in one case, it applies 
 only partially in the other. It can «illi no more propriety be 
 sai<l tha( an examinati(ui is impracticable because a position is 
 coniidenl ial, (ban lliatit is al least partially inqiracticable because 
 it will not fully ascertain the merit and fliness of the aitplicant. 
 In one case the examination is imjiracticable by feason of tha 
 i-es])onsibility and confidential cbaracler of the position; in the 
 oilier, liy reas(ui of the inelliciency of such an examination to fully 
 and fairly delermine the merit and filness of the contemplated 
 emjiloyee. ( )ne is imjuaclicable because of the character of the 
 ]iosilioii, and in the other the manner of ascertaining the 
 qualificalioiis of the a]iplicant by examination is impracticable 
 because insullicient. '\'\liile we hav«> held in regard to the former 
 that those posilions are not included in the pro\ision as to 
 exa.minations because they are not jiraclicable to determine merit 
 and filness tor such jilaces, and, lience, no examination need be 
 had, still, it is to be observed that the Constitution does not say 
 Ihat examinations shall not be made irlirn. impracticable, but 
 that they sliall be made si> far as jiraclicable to determine merit 
 and fitness; that is, to the extent that th(>y are practicable to 
 acconijilish that purjiose, they shall be employed. 
 
 AVe think I here are Iwo classes of cases where the question 
 
Liquor Tax Law 429 
 
 of i/i-:ioTit-ability arises; one, where the phire is such that no 
 
 examinaTiiu can be had beeanse the questions of merit and 
 
 fitness foi tlie particular phice can not be reached in that way, 
 
 and the vX\n--v where an examination may be had, but 
 
 different and additional tests will tend to secure an improved 
 
 service by move accurately determinini; these questions. If 
 
 the statute ijroviding a probationary term as one of the 
 
 means to determine the merit and fitness of an appointee or 
 
 employee is in conflict with the Constitution, then the statute 
 
 which excepts from its operation deputies and confidential 
 
 employees is also in conflict with it, and the former decision of this 
 
 court as to persons holding a confidential relation to the person or 
 
 department appointing them was not justified under the provisions 
 
 of the Constitution. If the words " so far as practicable " do not 
 
 apply to a case where the real merit and fitness of an appointee 
 
 are sought to be determined by other methods which are surer and 
 
 will more accurately determine tliose questions, then they have 
 
 no meaning and cannot be employed to sustain the decision of 
 
 this court in the Chittenden case. 
 
 As it is evident that the amendment of the Constitution was 
 not intended to provide that civil ser\iee examinations should 
 be the sole means of determining the merit and fitness of appli- 
 cants, and as it expressly declared that laws should be made by 
 the legislature to provide for its enforcement, and in view of 
 the fact that this court has already decided that the statutes 
 which were in existence when the Constitution was adopted are 
 still in force, and are the laws of this State relating to the subject, 
 we think it cannot be properly held that the statute which then 
 provided for a probationary appointment as. one of the means of 
 ascertaining the merit and fitness of applicants, is in conflict with 
 that provision of the Constitution. 
 
 But it is said that if this construction of the Constitution shall 
 obtain, its provisions may be violated l)y unscrupulous and dis- 
 honest officers. That may be. There are few statutes or consti- 
 tutional provisions that may not be thus violated. But in con- 
 struing the language of the ('onstitution, distrust of public 
 officers, or fear that they may not discharge their full duties, 
 should not be assumed or entertained and made a basis for hold- 
 ing the statute of 188.3 in conflict with it. In construing this 
 amendment, this court should not assume that public officers 
 will not perform their duty or will fail to discharge the respons- 
 
4o0 Decisions Relating to 
 
 ibilities im|)osc(l upon them by l;iw in an honest and proper 
 niaiuiei-. " It must be assumed that tin- Legislature, and all 
 other public bodies intrusted with the fumtions of government, 
 general or local, will use the power conferred by the Constitution 
 or the law fairly and in the public interests." (Clark v. tState, 
 142 X. Y. 101, 1(15.) Nor is it to be assumed that the framers' 
 of the Constitution had any such idea in view when it was 
 proposed and adopted. If it had been the purpose of the tramers 
 of this provision to prevent the Legislature from requiring other 
 and existing means of determining the merit and fitness of 
 appointees or employees in the public service, they would not 
 have employed language limiting the extent and effect of such 
 examination to practicability in ascertaining and determining 
 them, but would have made the examination absolute and con- 
 trolling. So, too, if liiey had intended to limit the matter o£ 
 practicability to particular positions or i>laces, they would have 
 enijiloyed langviiiue exiacssing that idea, such as " in such cases 
 as it is practicable," or some other equally apt term. Instead of 
 employing any such expression, they have used one which shows 
 plainly that the limitation of practicability was intended to be 
 one of extent, and applicable to all cases alike. 
 
 By these considerations we are led to the conclusion that the 
 law of 1883, providing for a probationary term in which to test 
 the merit and fitness of an applicant for a position in the civil 
 service of the State or the various municipalities thereof, is not 
 in conflict with the provisions of section 9 of article 5 of the 
 Constitution. Therefore, that statute being valid and in force at 
 the time of the relator's appointment, it is obvious that his ser- 
 vices for the State were properly terminated so far as the civil 
 service laws and regulations are involved. 
 
 This brings us to the consideration of the question whether 
 the rights of the relator are controlled by the Veterans' Act 
 (Ch. 821, L. 1896). It is contended that, independently of the 
 Civil Service Law and by virtue of that act, a veteran has an 
 absolute right to be preferred and appointed to any appointive 
 position he seeks, unless the officer or department having the 
 power of appointment shall show affirmatively, upon a hearing 
 after notice upon charges made, that he is incompetent, or has 
 been guilty of some act or misconduct which renders him unfit for 
 the place, and the burden of proof is upon the officer or depart- 
 ment to establish such incompetency or misconduct. 
 
Liquor Tax Law 431 
 
 The Veterans' .^ct, however, dechires that its [irovisions shall 
 not be construed so as to ;i])iil.y to any person holding a 
 confidential position. So that it the position of special agent was 
 coniidential, then chapter 821 has no application in this case, 
 although it mav have force in others. Section 10 of the Liquor 
 Tax Law (Ch. 112, L. 1896) permits the State Commissioner of 
 Excise to appoint not more than sixty special agents at an annual 
 salary of twelve hundred dollars, payable monthly, and then 
 declares: "Such special agents shall be deemed the confidential 
 agents of the State commissioner, and shall, under the direction 
 of the commissioner and as required by him, investigate all 
 matters relating to the collection of liquor taxes and penalties 
 under this act, and in relation to the compliance with law by 
 persons engaged in the trafflc in liquors." Then follows a detailed 
 statement of the duties of such special agents, which shows quite 
 clearly that they are of an important and confidential character. 
 The position of such an agent is one in .which he represents tha 
 commissioner in a manner and to an extent which may well be 
 regarded as strictly confidential. Thus we find that the same 
 Legislature, which excepted from the operation of the Veterans' 
 Act any person holding a strictly confidential position, declared 
 the position held by the relator to be confidential. 
 
 That the position of special agent is confidential there can be 
 little doubt. This court has had occasion recently to several 
 times consider the question as to what constitutes a confidential 
 position. In Matter of Ostrandcr (12 Misc. Eep. 476) it was 
 held that the position of deputy superintendent of public buildings 
 was a confidential one, and, therefore, fell within the exception 
 to the Veterans' Act, which gave preference in appointment to 
 honorably discharged soldiers, sailors and marines. That case 
 was ai3flrmed by this court on the opinion of the court below. 
 (146 N. Y. 404.) 
 
 In People ex rel. Crummeij v. Palmer (152 N. Y. 217, 220) 
 this court again considered the meaning of the word 
 "confidential," as used in a similar statute, and it was there said: 
 "The statute which we have under consideration has reference to 
 ofiScials, and the confidential relations mentioned undoubtedly 
 have reference to official acts, and include not only those that are 
 secret, but those that involve trust and confidence which are 
 personal to the appointing officer. If, therefore, the statute casts 
 upon an oflQcer a duty involving skill or integrity, and a liability 
 
4,'>l! ) )iO(jiNi()xw 1;i':lati.\g 'Jo 
 
 cither personal or ou the part oT the jiiunieipality which he 
 I'l'ltrescutis, aud he iiitrusis the discharge of this duty tu another, 
 tlieir irlatious liecome coiilideiitial." It was thei-e held that an 
 assistant warrant clerk in the office of the comptroller of the city 
 of JU-ookl.vn sustained a coufldeutiai relation to his superior 
 officer A\ ithin the meaning of a statute preventing the removal of 
 soldiers, sailors or members of a volunteer lire department in any 
 city of the ^tate. 
 
 In Chittcitdcit \. Wiirstvr (Id. 360j this question was also 
 considered, and, after referring to the Cniinnicy case, it was there 
 said: "We then were of the opinion that where the duties of the 
 position weje not merelj' clerical, and were such as were especially 
 devolved upon the head of the office, which, by reason of his 
 numerous duties, he was compelled to delegate to others, the 
 performance of which required skill, judgment, trust and 
 confidence and invoht'd the responsibility of the officer or the 
 municipality which he rejiresents, the position should be treated 
 as confidential." 
 
 "When we read the provisions of section 10 of the Liquor Tax 
 Law, whiili declare that a special agent shall be deemed the con- 
 fidential ai;ent of the State couiiiiissioner, and ascertain the duties 
 he is re(iuired to discharge under the immediate direction of the 
 commissioner, it becomes manifest that they are of a confidential 
 character. His acts are official acts performed for and 
 in the name of the commissioner, and are not only 
 secret, but they also involve trust and confidence which 
 are personal to the appointing officer. The duties cast 
 upon the special agent involve sJcill, integrity and liability per- 
 sonal to the officer he represents, and the relations between the 
 excise commissioner and the special agent fall plainly within, 
 the principle of the previous decisions of this court upon the 
 subject. Thus the position to which the relator was appointed 
 was not only declared by statute to be confidential, but its duties 
 were such as to render it clearly so under the doctrine of the cases 
 decided by this court. 
 
 It is, however, said that the civil ser>ice commission has placed 
 the j.osition of special agent in the list where competitive examin- 
 ations are required, and, hence, the position cannot be regarded 
 as confidential. Surely the civil service commission cannot 
 change the actual status of a position by declaring one which is 
 actually confidential not to be so, nor is it vested with power 
 
Liquor Tax Laav 433 
 
 to repeal a valid statute or to piactioally annul it by declaring 
 a position to be competitive when the la-w has provided other- 
 wise, and the position is plainly of a strictly confidential 
 character. 
 
 I find no significance in the suggestion that the question of the 
 confidential character of the position of special agent was not 
 raised by the excise commissioner in the courts below. If that 
 were admitted, it would not aid the relator, as it is a universal 
 rule that it is the duty of the appellate court to affirm a judg- 
 ment which is correct, although the ground assigned for the 
 decision may be untenable. In other words, the rule requires 
 that a correct judgment should i)e affirmed, regardless of the 
 correctness of the reasons given for awarding it. If the act of 
 18S3 is valid and still in force, and the position of special agent 
 is a confidential one, it follows that the judgment Avas right and 
 should be affirmed. 
 
 "We are of the opinion that the statute of iss;! and the statutes 
 amendatory thereof are still in force and are not in conflict with 
 the Constitution; that the position of siierial agent was a contl- 
 dential one; that the relator was not entitled to be appointed to 
 or retained in the position of special agent, and tliat the Appellate 
 Division properly so held. 
 
 The order should be affirmed, with costs. 
 
 Haight, J. (dissenting). William H. I». Sweet, the appellant, 
 is a citizen of this State and is an honorably discharged soldier 
 of the Union army during the late civil war, having served therein 
 as a second lieutenant of the Third regiment of cavalry of New 
 York State volunteers. 
 
 In June, 1S96, he passed the civil service examination and was 
 placed upon the register of applicants eligible for appointment 
 to the position of special agent under the Liquor Tax Law. On 
 the 2Cth day of September thereafter, the defendant appointed 
 him to the position of special agent for a probationary term of 
 three nfonths, upon a salary of |1,200 per annum. He thereupon 
 entered upon the discharge of the duties of his position and served 
 the term for which he was appointed. On the 19th day of Decem- 
 ber, 1896, he received a letter from the defendant notifying him 
 that his efQciency and capacity for the work required as a special 
 agent during his probationary term of three months had not 
 proved satisfactory, and that his employment would cease on the 
 28 
 
ioi Decisions Relating to 
 
 li3 day ol' Decembt'i- thcrculUT. Ou the 8tli day. of April, 1897, 
 he petitioned the emirt tor a pereuiptoiy writ of mandamus 
 directed to the defendant eunimanding him to reinstate him to 
 the position of special aj^enl, or for such other and further relief 
 as may be just and proper. In his petition he alleged that he had 
 the capacity required for the performance of the duties of a 
 special agent, and that he was efficient in the discharge of his 
 duties as such during his probationary term. The defendant 
 opposed his application for the writ upon an affidavit filed by him 
 ass<'rting his inefficiency and incapacity' for the discharge of the 
 duty of the position. Upon the hearing of the motion before the 
 court, the relator asked that an alternative writ issue in order 
 that the question of his capacity and efficiency might be deter- 
 mined by the court. The court refused to issue an alternative 
 writ and denied his motion for a mandamus, and this order was 
 affirmed in the Appellate Division. 
 
 Chapter Siil of the Laws of 1896 provides that: '• § 1. In 
 every public department and upon all public works of the 
 State of Xcw York * » * honorably discharged Union 
 soldiers, saihiis and marines shall be preferred for appointment, 
 eniplDvmenr and ]iroiii()ti(in; * * » provided they possess the 
 business capacity necessary to discharge the duties of the position 
 involved. And no person holding a position by appointment or 
 employ iiiciit in the State of New York » * * -^yho is an 
 honorably discharged soldier, sailor or marine, » » * shall 
 be removed from such position or employment except for 
 incompetency or misconduct shown, after a hearing upon due 
 notice, upon the charge made, and with the right to such employee 
 or aj)poiiitee to a review by writ of certiorari; a refusal to allow 
 the preference provided for in this act to any honorably discharged 
 Union soldier, sailor or maiine,or a reduction of liis compensation 
 intended to bring about a resignation, shall be deemed a mis- 
 demeanor, and such honorably discharged soldier, sailor or marine 
 shall have a right of action therefor in any court of competent 
 jurisdiction for damages, and also a remedy by mandamus for 
 righting the wrong. The burden of proving incompetency or mis- 
 conduct shall be upon the party alleging the same. But the 
 provisions of this act shall not be construed to apply to the 
 position of private secretary or deputy of an official or depart- 
 ment or to any other person holding a strictly confidential 
 position." 
 
LiQUOE Tax Law 435 
 
 It may be that the provisions of this act casting the burden of 
 proving incompetency upon an officer charged with the duty of 
 making appointments to the civil service is unwise, and that the 
 clause making him guilty of a misdemeanor, and liable personally 
 in damages in case he fails to allow the preference provided for, 
 is haish and unreasonable. Possibly these provisions may operate 
 to deter officers from exercising their judgment against applicants 
 in considering their business capacity, and that, in consequence, 
 incompetent persons may receive appointments to positions in tha 
 civil service, thereby prejudicing the public interests; but as to 
 the wisdom and effect of these provisions we have nothing to do, 
 and if they are unwise, harsh and unreasonable the remedy is with 
 the Legislature. As long as they remain a part of our statutes it 
 is the duty of the courts to faithfully execute them. 
 
 The statute, as we understand it, as applied to the case under 
 consideration, casts the burden of showing that the relator did 
 not possess the business capacity necessary to discharge the duties 
 of special agent upon the defendant. He appointed the relator 
 for the probationary term of three months, provided by the statute 
 and the rules promulgated by the governor. The commissioner 
 thus had an opportunity to ascertain his competency and business 
 capacity. At the end of the probationary term the relator, being 
 an honorably discharged Union soldier, was entitled to his per- 
 manent appointment, provided he possessed the business capacity 
 necessary to properly discharge the duties of the position. The 
 commissioner, in the first instance, was charged with the duty of 
 determining that question of fact. He found against the relator, 
 but his finding is not conclusive. Under the provisions of the act 
 the relator is given the right to have the correctness of the com- 
 missioner's determination ascertained by mandamus. This remedy 
 he invoked, and it appears to us that, upon the papers presented, 
 he was entitled to an alternative writ, to the end that the question 
 raised with reference to his competency and business capacity 
 might be tried and determined by the court in the usual way. 
 
 It is now contended that the provisions' of the Liquor Tax Law 
 (Chap. 112, sec. 10, Laws of 1896) provide that the special agents 
 "shall be deemed the confidential agents of the State commis- 
 sioner," and that the provisions of the act which we have above 
 considered do not apply to any "person holding a strictly 
 confidential position." It will be observed that in the Liquor 
 Tax Law the word "strictly" is omitted, but assuming that it 
 
4M(; Decisions f{r,r,ATiX(i to 
 
 wiiN the inlciitiou ol' the J.cf^islaliux' to make the posiliou of 
 special ayeuls a strielly eoiitideuUal posilioii, tlie question then 
 arises as to whetlier it is iu conflict with the civil service 
 clause of the ('onslitution, which provides that "appointments 
 and promotions in the civil service of the State * * * 
 shall be made according to merit and fitness, to ije ascertained, 
 so far as ])racticable, by examinations, wliicli, so far as prac 
 ticable, shall be competitive." In consideriiij;- these provisions 
 of the Constitution in the case of Cliittinihii v. Wiirster 
 (152 X. Y. ;U,1), we held that comjietitive examinations were not 
 praclicable for posilioiis wliich were strict iy confidential to the 
 appointing officer, and in that case and in the Cninnnrij Cane 
 (152 N. Y. 217) we discussed to some extent the q\ies1ion :is to 
 what ((mstituted a confidential position. Of course, iiveat weight 
 should be given to the deleriiiiuation of the Ijcgislature as to the 
 character of the position. It, however, cannot override tlio ('on 
 stitution and l>y an enactnieut make a position confidential which, 
 under a fair and reasonable construction of the Constitution, is 
 not confidential. Whether a position is confidential or uoi- 
 depends lnrt;ely u]ion the chniiKter nf the duties ef tli<' position. 
 ^^'e think, however, that we are relie\ed from the consideration of 
 this (]uestion at this time for the reason that the coimnissidner of 
 excise in this case lias made no t-laim that the ]iosition was confi- 
 dential or that he refused to appoint the relator for that reason 
 In his answ^er to the petition for the writ of mandamus he alleged 
 two grounds, and tw^o only for the oiiijosing of the allowance of 
 the writ. These grounds Avere, first, incomiietency, and second, 
 laches in instituting the proceedings. Those wert' the only ques 
 tious brought to the attention ot the court and are the only 
 questions which we think can properly be here considered. 
 
 The order of the Ai»]iellate Division and that of the Sjiecial 
 Term should be re\-ersed and an allernati\-e writ issued, and for 
 that purpose the proceeding should be remitted to the Special 
 Term, with costs to abide the final award of costs. 
 
 P.ARTLETT, -T. ( (1 isseu tiug I . I agree with dudgc Haigut for 
 reversal but place my vote on the grounds stated in his opinion 
 and the additional gi'ound based on the civil service provisions 
 of the Constitution (Art. \', §9). 
 
 The fundamental law commands that appointments and pro 
 motions in the civil service shall be niade aciording to merit and 
 
Liquor Tax Law 437 
 
 fitness, to be ascei-tained, so far as practicable, by examinations, 
 which, so far as practicable, shall be competitive It then 
 further commands that the honorably discharged suldieis and 
 sailors in the late civil war, who are citizens and residents of 
 this State, shall be entitled to preference in appointment and 
 promotion without regard to their standing on any list from 
 which si:eh appointment or promotion may be made. 
 
 In my opinion, when the naine of a veteran is duly reached on 
 the eligible list, he is entitlea, under the jircvisions of the Con- 
 stitution and the law eaacted to carry them o"it, to an absolute 
 appointment, and therealter can be re;iioved only for incom- 
 petency or misconduct, (Ch. s2l, LaAvs IS'.M'i.) 
 
 The provisions for a probationary appointment of three months 
 (Laws ISSo. ch. -iM, § 2. and rule 12 of the Civil ^^ervice Boardj 
 are contrary to the letter and spirit of the ("onstitution, and con- 
 sequently void. The rule enacted by legislative authority, and 
 as amended in ISIJii. ]iri.vid(s: "At the end of such term, if the 
 conduct, capacity and fitness of the probationer are satisfactory 
 to the appointing officer, his retention in the service ^hall be 
 equivalent to his absolute apiKJintment; but if his conduct, 
 capacity and fitness be not satislactury. he may be discharged at 
 any time." 
 
 If this rule and the legislation upon whicli it is based can 
 stand, it may be well asked what has become of thai protection 
 which the Constitution is supposed to afford the veteran after 
 his merit and fitness have been ascertained l)y a competitive 
 examination and his nun e entered on the eligible list? 
 
 It comes to this, that he receives his absolute appointment onlv 
 if his conduct, capacity rrad fitness are satisfactory to the appoint- 
 ing officer. To my mind, this amounts t.i a practual repeal of 
 the constitutional provisirms to which reference has been made. 
 
 If the act of 1 N.S3 and the rule framed in pursuance of it stand, 
 the Legislature can repeal the act of ISiKj and all other acts 
 standing in the way, and appointments will depend upon the 
 whim, the caprice, of an a^qiointing officer if he is disposed to 
 abuse the power with which he is vested. 
 
 It is no answer to say that the law presumes an officer will 
 perform his duty properly. 
 
 The civil service policy of the ^^tate, which was finally placed 
 in the Constitution, seeks tn do away with this abuse of power 
 and patronage. 
 
i'AS Decisions Kklating to 
 
 1 am not content to rest my vote solely on the act of 1S!)IJ. 
 
 Martix, J., reads for affirmance. I'aeker, Ch. J., (jkay and 
 Vann, JJ., concur. Haight, J., concurs so far as it relates to tlie 
 civil service provisions of the Constitution and statutes, but dis- 
 sents as to the portion relating to the Vete^-ans' Act upon the 
 grounds specified in his opinion. 
 
 Haight and Bartlett, J.J., read for reversal, and t)'15i;iEX, J., 
 concurs. 
 
 Order aflfirmed, with costs. 
 
 Fourth Appellate Department, Decerrber, 1898. Reported. 35 App. Div. 227. 
 
 HENtn H. Lyjiax, as State Commissioner of Excise, Respondent, 
 V. Prank Mattv, Appellant. 
 
 Intoxicating liquor — Place of trial of actions brought under section 42 
 of the Liquor Tax Law. 
 In an action brought under section 42 of the Liquor Tax Law (Chap. 112, 
 Laws of ]S9fi, as amended by chap. 312, Laws of 1897), the defendant, 
 when the venue is laid in a county adjoining that of his residence, can not 
 move to have the place of trial changed to the county in which he resides; 
 if the action is not brought in a county adjoining the county of his 
 residence, he may move to have the place of trial changed to some one 
 of the adjoining counties, but not to his own county. 
 
 Appeal by the defendant, Frank Jlatty, from an order of the 
 Supreme Court, made at the Oswego Special Term and entered in 
 the office of the clerk of the county of Oswego on the 10th day of 
 January, ISOs, denying his motion to change the place of trial of 
 the action from Oswego county to Onondaga county. 
 
 John W. flogan, for the appellant. 
 S. B. j\Iead, for the respondent. 
 
 FoLLETT, J.: Li/iiiaii v. annncrcij (Viih (28 App. Div. 30) is 
 not in point. That action was brought against sureties to recover 
 for the breach of a bond given and prosecuted pursuant to section 
 1« of llie Liquor Tax Law, and tiie only reference in the act to 
 
Liquor Tax Law . 439 
 
 the venue or to the place of trial of such actions is contained in 
 that section, which provides that such an action may be brought 
 "in any court of record in any county of the State." The caae 
 cited simply holds that this language did not deprive the court 
 of power to change the place of trial given by the Code of Civil 
 Procedure. 
 
 The action now before the court is brought for the recovery of 
 penalties under the J:2d section of the Liquor Tax Law which 
 provides that such an action may be brought "in any court of 
 record in any county t)f the State." If there were no other 
 provision in respect to place of trial, Lyman v. Gramercy Club 
 would be an authority, but the 42d section contains this further 
 provision : "Wiien an action is brought in any county other than 
 the county wherein the defendant resides, or in an adjoining 
 county, the place of trial of such action may be changed to any 
 county adjoining the county wherein the defendant resides, for 
 cause shown as provided by the Code of Civil Procedure." This 
 provision denies the defendant the right in such an action, when 
 the venue is laid in an adjoining county, to move to have the place 
 of trial changed to the county in which he resides, but he may, in 
 case an action is not brought in a county adjoining the county 
 of his residence, move to have the place of trial changed to some 
 one of the adjoining counties, but not to his own county. 
 
 I think the order is right, and that it should be affirmed, with 
 ten dollars costs and disbursements. 
 
 All concurred. 
 
 Order affirmed, with ten dollars costs and disbursements. 
 
 Third Appellate Department, December, 1898. Reported. 35 App. Div. 624. 
 
 The People of the State of New York, Eespondent, v. George 
 W. Smith^ Appellant. 
 
 Judgment modified by striking out that portion thereof which 
 directs that the defendant stand committed to the common jail of 
 the county until such fine is paid, and as so modified affirmed on 
 authority of People v. Stock, (26 App. Div. 564 ; affd., 157 N. Y. 
 681). No opinion. All concurred. 
 
•140 Decisions Relating to 
 
 Fourth Appellate Department, December, 1898. Reported. 35 App. Div. 632. 
 
 The Pe(ji'LE of the S^tate of New York, Kespoudeut, v. Tho.mas 
 ("liiTELLi, Appellant. 
 
 Appeal from judgment entered upon verdict of jury finding 
 defendant guilty of selling or gi\ing away liquor on Sunday. 
 
 Vharh's D. yeicioii., attoi-ney tor appelkint. 
 
 The court erred in chavuiu^ the jury that if they found that 
 defendant gave awa}' lager beer on Sunday to the special agents 
 on the occasion in question, or to anybody else iu their presence, 
 then he was ;^;iilty, as cliai-ucil in indictuu'iit. 
 
 Tlie coiii-i ericil in ch a rui ii n the jury that if defendant ,iiave 
 away lager beer (ni Sunday, it made no difference whether it was 
 his or belonged to some of his giiests who ,iad bought a case and 
 who had authorized this jiarticular gift. 
 
 Charles H. Roirc. attoruey for res])ondent. 
 
 The defendant was selling or giving away liquors on Sunday. 
 That such liquor had been purchased iu quantity by his boarders 
 the night before, so as to have it on hand for Sunday, was not 
 material if he gave any of it away, either with the consent of the 
 owners or otherwise, and the charge to that effect was no error. 
 
 Judgment modified by striking therefrom the words "or stand 
 committed to the Livingston county jail until paid, not exceed- 
 ing two hundred days," and, as modified, affirmed. (See People 
 V. Stocl-, 2r. App Div. .5G4; affd. 1.37 N. Y. 681). 
 
 All concurred. Ward, J., not voting. 
 
Liquor Tax Law 441 
 
 Supreme Court, Monroe Special Term, January, 1899. Unreported. 
 
 Hexky H. Lyman i\ Lena Zi.mbiuch and Fidelity & Deposit Co., 
 
 of Maryland. 
 
 DuNWELL, J. : Motion by defendant. Fidelity and Deposit Com- 
 pany of Maryland, to require plaintiff to separately state and 
 number the causes of action, to make the complaint more definite 
 and certain, to strike out portions thereof, or for a bill of par- 
 ticulars. The action is iipon a bond and seeks to recover the 
 single penalty provided therein, consequently, but one cause of 
 action is stated, and that part of this motion requiring plaintirf 
 to state separate causes of action must be denied. 
 
 That part of the motion seeking to strike out the fifth para- 
 graph of the complaint, the words " pretending to carry on such 
 traffic under and by virtue of such certificate " is denied ; and 
 that part of said motion seeking to make said fifth paragraph 
 more definite and certain, or that defendant be furnished with a 
 bill of particulars of same is denied. 
 
 That part of the motion to strike out as irrelevant and redun- 
 dant, the sixth paragraph of the complaint, or to make it more 
 definite and certain, is denied; and that part of the motion to 
 strike out the words " in violation of the conditions and cove- 
 nants of said bond," in the second and third lines of the sixth 
 paragraph is granted; and that part of said motion to strike out 
 the words in the last four lines of the sixth paragraph, " and that 
 suffering and permitting said premises to so become, be and 
 remain disorderly, was a violation of said Liquor Tax Law, and 
 a breach of the conditions and covenants in said bond contained," 
 is granted. 
 
 That part of the motion for a bill of particulars, in respect to 
 allegations of the sixth paragraph is granted, so far as to require 
 plaintiff to set forth, so far as is within his knowledge and 
 information, in substance, the respects in which the premises of 
 defendant Zimbrich were disorderly, and the times and occasions 
 thereof, in respect to which plaintiff expects to give evidence. 
 
 That part of the said motion to strike out the words in the 
 second and third lines of the seventh pai'agraph " in violation of 
 the conditions and covenants of said bond" and the words in 
 the fourth, fifth, sixth, seventh, eighth and ninth lines of said 
 paragraph " in violation and contrary to the provisions of sub- 
 
442 Decisions Relating to 
 
 division 9, section 23 of said Liquor Tax Law, by carrying on and 
 permitting to be carried on, and being interested in a traffic and 
 business, the carrying on of which is a violation of law"; and 
 the words in the last three lines of said seventh paragraph, "All 
 of which is in violation of said section 23, subdivision 9, of said 
 Liquor Tax Law, and a breach of the conditions and covenants 
 in said bond contained," is granted. That part of the motion to 
 make the seventh paragraph of said complaint more definite and 
 certain, and for a bill of particulars in respect to the allegations 
 of the seventh paragraph is denied. 
 
 That part of the motion relating to the eighth paragraph of said 
 complaint, requesting that it be made more definite and certain, 
 or for a bill of particulars, is denied. 
 
 That part of said motion to strike out as irrelevant and redun- 
 dant, the ninth paragraph of said complaint, is denied. 
 
 The order to be entered upon this decision may provide that 
 plaintiff may serve an amended complaint herein within ten 
 days from the entry of the order, in accordance with the changes 
 provided by said order. 
 
 The answer already served to stand as an answer to the 
 amended complaint, or defendant, at its option, to have ten days 
 within which to serve an answer to the amended complaint. The 
 bill of particulars granted by the decision to be served within 
 twenty days from the entry of the order. 
 
 The order herein provided for is without costs to either party 
 upon this motion. 
 
 Supreme Court, Appellate Term, January, 1899. Reported. 25 Misc. 735. 
 Rose Wilking, Respondent, v. Adolph Richter, Appellant. 
 
 Services— illegal contract tliat a woman sliail serve liquors— Illegality 
 shown under a general denial alone. 
 A contract that a woman, not a member of her employer's family, should 
 serve wines and liquors to customers on the premises Is illegal under the 
 Liquor Tax Law as amended (Laws of 1897, chap. 312, sec. 31, subd. f) ; 
 and the defense of illegality, although not pleaded specifically, may be 
 raisedi under a general denial. 
 
 Appeal from a judgment of the Fourth Municipal Court, 
 borough of Manhattan, in favor of the plaintiff. 
 
Liquor Tax Law 443 
 
 C. Brandt, Jr., for appellant. 
 
 L. W. Harburger, for respondent. 
 
 GiLDEESLBEVB, J. On Or about June 27, 1898, the defendant 
 entered into a verbal contract of employment with plaintiff, by 
 the terms of which he was to pay her $2 a day for her services as 
 a waitress in Glendale Park, during the National Schutzen Fest, 
 from July 3d to July 11th, inclusive. It was understood that the 
 duty of the plaintiff was to serve wines and liquors to the cus- 
 tomers. On July 2d, plaintiff received word from defendant not 
 to go to Glendale, as the police objected to women serving as 
 waitresses there. The plaintiff, however, offered her services, in 
 accordance with the contract, but defendant refused to give her 
 any work. She tried to get work elsewhere and failed to obtain 
 it. She brought this action to recover for the breach of contract. 
 
 The pleadings are oral. The complaint is for " breach of con- 
 tract, and work, labor and services." The answer is a " general 
 denial." It was admitted that plaintiff performed no work under 
 the contract. The defendant moved, at the end of the case, to 
 dismiss the complaint, on the ground that the contract was 
 unlawful at its inception. The motion was denied on the ground 
 that this defense should have been specially pleaded. Judgment 
 was then given for the plaintiff. 
 
 That the contract was unlawful is clear. The statute (Laws of 
 1897, chap. 312, -§ 31, subd. f ) , declares that " It shall not be 
 lawful for any corporation, association, copartnetship or person, 
 whether having paid such tax or not, to permit any girl or 
 woman, not a member of his family, * * * to sell or serve 
 any liquor upon the premises." It is not pretended that plaintiff 
 was a member of defendant's family. 
 
 As to the question of the sufficiency of the general denial, we 
 may say that the general rule is that a general denial in the 
 answer, in an action on a contract, puts in issue simply all 
 matters which plaintiff is bound to prove to make out his cause 
 of action; and, in order to avail himself of facts, not appearing 
 upon the face of the contract, to establish its invalidity, the 
 defendant must plead them. See Milbank v. Jones, 127 N. Y. 370. 
 But, under a general denial in an action on contract, defendant 
 may object that the plaintiff's evidence shows that no valid 
 contract was made. See Gary v. Western Union Tel. Co., 20 Abb. 
 
-Hi Dioi'iHioNS Relating to 
 
 N. C. 333, Van Brunt, P. J. The theory, upon which the action 
 proceeds, is that the ]ila,intiffl lias a contract valid in law, and 
 whatever shows the invalidity ot the contract shows that no such 
 contract as alleged ever existed. See Oscanyan v. Arms Co., 103 
 U. S. -GG. In the case at bar, the contract was verbal. Plaintiff, 
 however, on her cross-examination, testified thus: " Q. This 
 particular place was a pulilic park, where you wer<' to serve 
 wine? A. Yes, sir. Q. If you were called upon to bring a bottle 
 of wine to a customer, you would do it? You were told it was for 
 that purpose? A. Yes, sir." It appears, therefore, from plain- 
 tiff's own version of the contract, that it called upon her to ser^'e 
 wines and liquors. The general denial was sufficient, and this 
 defense of illegality was available, although not pleaded 
 specifically. 
 
 The contract, being unlawful, cannot be enforced, and plaintiff 
 is not entitled to recoxer damages for its breach. 
 
 Judgment must be reversed and a new trial ordered, with costs 
 to the appellant to abide the event. 
 
 Beekman, p. J., and Giegerich, J., concur. 
 
 Judgment reversed and new trial ordered, with costs to appel- 
 lant to abide event. 
 
 Second Appellate Department, January, 1899. Reported. 36 App. Div. 533. 
 
 In the ]\ratter of the Application of William Bridge, Eespondent. 
 for an Order Eevoking and Cancelling the Certificate of License 
 for Trafficking in Liquors issued to (iEORca; :\roHRMAXN, 
 Appellant. 
 
 H. ^X. ^Michell, Special Deputy Commissioner of Excise for 
 Kings county, respondent. 
 
 Appeal by George Mohrmann from an order of the Supreme 
 Court, made at the Kings county Special Term and entered in the 
 office of the clerk of the county of Kings on the 14th day of 
 November, 1898, revoking and cancelling the liquor tax certifl- 
 
Liquor Tax Law 445 
 
 cate issued to him by the special deputy commissioner of excise 
 for Kings county. 
 
 Order affirmed, with ten dollars costs and disbursements, on 
 the opinion of Garrbxson, J., at Special Term. 
 
 All concurred. 
 
 Second Appellate Department, January, 1899. Reported. 36 App. Div. 638. 
 
 Abraham Goxtschalk, Appellant, v. Elizabeth Schock^ Respon- 
 dent, Impleaded with Jacob Schock. 
 
 Judgment reversed and new trial granted, costs to abide the 
 event. Appeal from an order of the court at Trial Term, dis- 
 missing the complaint as to one of the defendants. 
 
 Goodrich^ P. J. : We think it was error to exclude the testi- 
 mony as to the liquor license, and inasmuch as that evidence, 
 coupled with the testimony as to Mrs. Schock's admissions of her 
 relation to the store, would have required a submission of the 
 case to the jury, the judgment must be reversed. 
 
 All concurred. 
 
iSfefM.!.^^ 
 
 MM