HON. CHARLES H. BLOOD KfsJ l^o3 Cornell University Law Library THE GIFT OF Allan H. Treman,, Attorney at Law Ithaca New York' Date..Mar.c,]a...a.,.. .1.9.4.8 Cornell University Library KFN5900.A5A3 1903 The Liquor Tax Law of Ihe State pt New Y 3 1924 022 874 048 The original of tiiis bool< is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022874048 THE LIQUOR TAX LAW OF THE STATE OF NEW YORK, BEING Chapter 112, Laws of 1896, As Amended by Chap. 445, Laws of 1896; Chap. 312, Laws of 1897 ; Chap. 167, Laws of 1898; Chap. 398 and Chap. 434, Laws OF 1899; Chap. 80, Chap. 257 and Chap. 367, Laws OF 1900; Chap. 640, Laws of 1901; and Chap. 115 and Chap. 486, Laws of 1903. ANNOTATED WILLIAM E. SCHENCK, Assistant Counsel, Department Excise. Prepared by the State Commissioner of Excise, July i, 1903. 36^5.97 J. B. Lyon t^oMPANr, Peintebs Albany, New York 1903 #11^' THE LIQUOR TAX LAW. Being Chap. 112, Laws 1896, as Amended by Chap. 445, Laws 1896; Chap. 312, Laws 1897; Chap. 167, Laws 1898 ; Chap. 398 and Chap. 434, Laws 1899; Chap. 80, Chap. 257 and Chap. 367, Laws 1900; Chap. 640, Laws 1901 ; and Chap. 115 and Chap. 486, Laws 1903. 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 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 New York, represented in Senate and Assembly, do enact as follows: CHAPTEK XXIX OF THE GEIn]"EEAL LAWS. THE lilQUOE. 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. 8. 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. 4: LiQDOE Tax Law. Section 14. Compensation of county treasurers. 15. Books and blanks to be furnisbed by state commis- sioner of excise. 16. Local option to determine wbetber liquor shall be sold under the provisions of this act. lY. Statements to be made upon application for liquor tax certificate. 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 traffic 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 nol; be per- mitted. 25. 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 and 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. 32. Sales and pledges; when void. 33. Persons liable for violation of this act. 34. Penalties for violations of this act. 35. Jurisdiction of courts. 36. Collection of fines and penalties and forfeiture of bonds. 3Y. Duties of public officers, in relation to complaints and prosecutions under this act. O 2] Liquor Tax Law. 5 Section 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. Section 1. Short title. — This chapter shall be known as the liquor tax law. 7 / ^ 'l^Ot^ ^ L/ S ^ § 2. Definitions — The term " liquors"" as used in this act, in- I eludes and means all distilled or rectified spirits, wine, fermented ( and malt liquors. The term " association " includes any combina- f tion of two or more persons, not incorporated nor constituting a copartnership. The term " person "includes and means any cor- poration, association, copartnership or one or more individuals. The term " subsistence " includes and means food and lodging. " Trafficking in liquors," within the meaning of this act, is : 1. A sale of less than five wine gallons of liquor ; or, 2. A sale of five wine gallons or more of liquor, in which lees than five gallons of any one kind and quality is included; or, 3. A sale of five wine gallons or more of liquor, any portion ■of which is intended or permitted to be drunk on the premises where sold; or, 4. A sale of five wine gallons or more of liquor, when the liquor so sold is delivered, or agreed to be delivered, in a less quantity than five wine gallons at one time ; or, 5. The distribution of liquor by, between or on behaU of mem- bers of a corporation, association or copartnership, to a member thereof or to others, in quantities less than five wine gallons. Thua amended, L. 1897, chap. 312; and L. 1903, chap. 486. . ^^ q ujj J' 6 Liquor Tax Law. [§4] Iilquors. — The term " liquors " expressly Includes all fermented and malt liquors, but the use of the word "beer" without stating a kind of ■beer linown to be a fermented or malt liquor does not Imply a liquor of such a character because there are unfermented extracts of various roots and plants. Matter of Hunter v. Caffrey, 34 Misc. 389, aflSrmed (without opinion) 59 App. Dlv. 626. § 3. The abolition of boards of excise and their powers and duties. — ^From and after the thirtieth day of April, eighteen hundred and ninety-six, all boards of excise in the state of JSFew York are abolished, and the rights, duties and powers of all boards of excise and of all commissioners of excise, and of the clerks and all other employes, shall cease and terminate from that date. No license to sell liquor shall be granted after the passage of this act by any such board of excise, to extend beyond the thirtieth day of April, eighteen hundred and ninety-six. The fee for such license to so expire shall be in proportion to the fee for one year. Repeal of previous excise law. — The liquor tax law being an act within the police power of the state and constitutional, boards of excise, therefore, had no power, after its passage, to issue licenses extending beyond April 30, 1896. People ex rel. EinsfeU v. Murray, 149 N. Y. 367, afiSrmlng 4 App. Div. 185. § 4. The continuance of licenses. — Every license heretofore lawfully granted by a board of excise, 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 cancelled 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, and be void from and after the thirtieth of Jime, eighteen hundred and ninety-six ; and the tax herein provided to be assessed shall not be levied or collected upon the business of any corporation, association, copart- nership or person holding an unexpired license, until the time laviTfully fixed for the expiration of such license, or itsi termina- [§ 5] Liquor Tax Law. 7 tion as herein provided unless such license shall be sooner can- celled. 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 propor- tion 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 was granted, and the same shall be paid by such town or city on demand. Teriuinatioii of licenses under previous excise law constitutional. — ^An injunction to restrain the State Commissioner of Excise from Inter- fering with the business to be carried on under a license terminated by the provisions of this section, was refused for the reason that it was held to be the policy of the courts not to restrain or enjoin the collection of a tax on the ground that the statute authorizing such tax Is Invalid, unless the invalidity of the statute had been previously declared. Balogh v. Lyman, 6 App. Dlv. 271. When the constitutionality of this section was attaclced In the United States Circuit Court by the holder of. a license granted for a period extending beyond June 30, 1896, the question was met squarely and the statute declared to be constitutional. Kresser v. Lyman, 74 Fed. Eep. 765. § 6. The duties of existing boards of excise On the fifteenth day of April, eighteen hundred and ninety-six, the several boards of excise in the several towns and cities of the state shall report in detail to the county treasurer of the county in which such board may be, except in counties containing a city of the first class, and in those counties to the special deputy commissioner for such county, the names of all corporations, associations, copartnerships, or persons who at that date hold a license from such board, the kind of license held, the date when the same was granted, the date of the termination thereof, the amount paid therefor, the name and residence of each surety on the bond of each licensee, and the place where business is carried on by such corporation, association, copartnership or person, and the names of all persons against whom proceedings are pending for a violation of the excise law, and shall on the thirtieth day of April, eighteen hundred and 8 Liquor Tax Law. [§ 6] ninety-six, make a supplementary report to such county treas- urer or special deputy commissioner in like form, covering all business transacted by them after the fifteenth day of April. They shall within thirty days after said thirtieth day of April deposit with the county treasurer of the county, or in the counties containing a city of the first class, with the special deputy com- missioner for such county, all books of record and accounts, maps and scrap-books that have been kept by such board. Failure to make the report required by this section, or to deposit the books of record and accounts, maps and scrap-books as required shall subject the offending members of such board of excise to a penalty of five hundred dollars, to be collected by due process of law by the county treasurer of the county elsewhere than in the counties containing a city of the first class, and there, by the special deputy commissioner for such county. § 6. State commissioner of excise; duties; necessary party to cer- tain litigation. — Within ten days after the passage of this act the governor, by and with the advice and consent of the senate, shall appoint a state commissioner of excise who shall hold his office for the term of five years, and until his successor is appointed and has qualified. A commissioner shall in like manner be appointed upon the expiration of the term. If a vacancy occurs in the office of commissioner it shall be filled in like manner for the residue of the term. The commissioner shall execute and file with the comptroller of the state a bond to the people of the state in the sum of twenty thousand dollars., with sureties to be approved by the comptroller, conditioned for the faithful performance of his duties, and for the due accounting for all moneys received by him as such commissioner. The commissioner shall receive an annual salary of five thousand dollars and the further sum of eighteen hundred dollars in lieu and in full of his expenses, which salary and expenses shall be payable in equal monthly installments. The state commissioner shall make an annual report to the legis- lature on or before the second Monday in each year, which shall contain such statements, facts and explanations as will disclose r§ 6] Liquor Tax Law. 9 the actual workings of the liquor tax law in its bearings upon the weKare of the state, including all receipts and revenues collected under the law, and all expenses and disbursements incurred, and also such suggestions as to the general policy of the state and such amendments of this law as the commissioner shall deem appropriate. The state commissioner shall also cause the accounts and vouchers of all excise moneys collected and paid over to the state and to the several localities by each county treasurer and special deputy commissioner' in the state, and the records of all transactions by them under the liquor tax law to be carefully examined, and the result of such examination certified to the state comptroller at least once in every year between the first day of May and the first day of October ; and, in addition to such annual examination, said commissioner may, whenever in his discretion he shall deem it necessary, examine said accounts, vouchers and records. The state commissioner of excise shall be made a party to all actions and proceedings affecting in any manner the sub- mission of the local option questions provided for in section six- teen of this act or the result of any vote thereupon or the traffic in liquors under this act; to all actions and proceedings relative to the issuance of liquor tax certificates under section eleven or the " transfer thereof under section twenty-five, twenty-six or twenty-seven, or the surrender thereof for cancellation and rebate under section twenty-five ; to all injunction proceedings under sec- tion twentv-nine; and to all other civil actions or proceedings, whether brought under the provisions of this act or otherwise, which in any manner affect the enjoyment of the privileges or the operation of the restrictions provided for in this act. From all other parties to such actions or proceedings, he shall be entitled to due notice of all proceedings therein and shall be duly served with copies of all papers and pleadings therein, where such notice of proceedings is not given to and such service of papers and pleadings is not made upon an attorney appearing therein upon his behalf, pursuant to a designation under section ten of this act. Thus amended, L. 1897, chap. 312; and L. 1901, chap. 640. 10 LiQuoE Tax Law. [§ 8] § Y. OfSce of state commissioner. — The trustees or other officers having, by law, the custody of public btiildings at the state capitol, shall assign to the commissioner rooms therein, for conducting the business of his department. The commissioner shall from time to time furnish the necessary furniture, stationery, and other proper conveniences for the transaction of such business, the expenses of which shall be paid by the treasurer on the certificate of the com- missioner and the warrant of the comptroller. § 8. Deputy commissioner; second deputy commissioner; secre- tary; clerks. — The state commissioner of excise shall appoint a deputy commissioner who shall receive an annual salary of four thousand dollars and the further sum of fifteen hundred dollars in lieu and iu full of his necessary expenses, which salary and ex- penses shall be payable in equal monthly installments. During the absence or inability to act of the state commissioner, the deputy commissioner shall have and exercise all the powers conferred by this chapter upon the state commissioner. The deputy commis- sioner shall give a bond to the people of the state in the sum of twenty thousand dollars and with such sureties as shall be approved by the commissioner. The commissioner shall appoint a second deputy commissioner, who shall receive an annual salary of three thousand five hundred dollars, payable in equal monthly install- ments. During the absence or inability to act of the state com- missioner and of the deputy state commissioner, the second deputy commissioner shall have and exercise all the powers conferred by this chapter upon the state commissioner. The second deputy commissioner shall give a bond to the people of the state in the sum of twenty thousand dollars, and with such sureties as shall be approved by the commissioner. The commissioner shall appoint a secretary, who shall receive an annual salary of two thousand dollars, payable in equal monthly installments, and a financial clerk, who shall receive an annual salary of eighteen hiindred dol- lars, payable in equal monthly installments. Such clerk, under the direction of the commissioner^ shall have charge of the disburse- [§ 9] LiQuoK Tax Law. 11 ment of the moneys appropriated for the expenses of the office, and shall give a bond to the people of the state, in such sum and ■with such sureties as shall be approved by the commissioner. Each of the officers provided for by this section, shall take and subscribe the constitutional oath of office before entering upon the perform- ance of his duties, and may be removed by the commissioner, who may in like manner appoint his successor. The commissioner may also appoint such clerical force in his office as may be necessary. Thus amended, L. 1897, chap. 312; L. 1903, chap. 486. § 9. Special deputy commissioners in certain localities; special agents to act in certain cases. — The state commissioner of excise shall appoint six special deputy commissioners of excise as follows : One for the boroughs of Manhattan and the Bronx; one for the borough of Brooklyn; one for the borough of Queens; one for the borough of Kichmond ; one for the county of Erie ; and one for the county of Monroe. Each of such special deputy commis- sioners and their successors in office shall take and subscribe the constitutional oath of office, execute and file in the office of the state comptroller a bond to the people of the state in such sum and with such sureties as shall be approved by the state commissioner. They shall perform such duties as may be required by the com-; missioner, or as may be provided by law. The state commissioner may remove any special deputy commissioner of excise, and shall in like manner appoint his successor, and may appoint in the offices of each of such deputies and their successors such clerical force as he may deem necessary or as may be provided for by law. The special deputy commissioners shall each receive an annual salary, payable in equal monthly installments, as follows: For the bor- oughs of Manhattan and the Bronx, four thousand dollars ; for the borough of Brooklyn, three thousand dollars ; for the borough of Queens, two thousand five hundred dollars; for the borough of Eichmond, two thousand dollars; for the county of Erie^ three thousand dollars; and for the county of Monroe, two thousand dollars. The special deputy commissioners for the boroughs of 12 Liquor Tax Law. [§ 9] Manhattan and the Bronx, the borough of Brooklyn, and for the county of Erie shall he furnished with an office and furniture, fix- tures and appliances therefor as may be deemed necessary by the state commissioner. The special deputy commissioner for the bor- ough of Queens shall be allowed the sum of fifteen hundred dollars, or so much thereof as may be necessary, to cover all the expenses of his office, including office rent and clerical help. The special deputy commissioners for the borough of Richmond and for the county of Monroe shall each be allowed annually the sum of five hundred dollars, or so much thereof as may be necessary, to cover all the expenses of his office, including office rent and clerical help, and as may be deemed necessary by the state commissioner. Upon each of such special deputy commissioners, and upon any special agent designated by the state commissioner of excise to perform the duties of a special deputy commissioner or a county treasurer, as is hereinafter provided, are devolved all the powers, duties and obligations in the respective county or borough for which he shall be appointed as are possessed by and vested in county treasurers of other counties of this state under and by virtue of the provisions of the liquor tax law. The salaries and expenses of each of such special deputy commissioners of excise, including office rent and clerical help, office furniture, fixtures and equipment, shall be audited, approved and allowed by the state commissioner of excise and paid as follows : One-half thereof by the treasurer of the state of New York, upon the warrant of the comptroller ; and one-half thereof by the treasurer of the county, or the fiscal officer of the city in which such borough is included, upon the certificate of the state commissioner of excise. In case the office of any special dep- uty commissioner of excise or county treasurer shall become va- cant, or if any special deputy commissioner or county treasurer shall become incapacitated or unable to perform his duties under the liquor tax law, or shall neglect or refuse to perform any duty devolving on him under the liquor tax law, the state commissioner shall designate a special agent to act in the place and stead of such special deputy commissioner or county treasurer during such va- cancy, disability or neglect, provided that such designation shall [§ 10] Liquor Tax Law. 13 not be made where the power to appoint a deputy county treasurer exists, and where the county treasurer does not fail or neglect to appoint such deputy. Thus amended, L,. 1898, chap. 167; L. 1899, chap. 434; L. 1900, chap. 257; and Ii. 1903, chap. 486. § 10. Duties, powers, salaries and expenses of special agents ; attor- neys. — The state commissioner of excise shall appoint not more than sixty special agents, each of whom shall receive an annual salary of twelve hundred dollars, payable in equal monthly install- ments, together with the necessary expenses incurred by direction of the state commissioner in the performance of the duties of his office, or the state commissioner of excise, in his discretion, may fix a per diem allowance for subsistence, to be audited and allowed at not more than three dollars per day, nor less than one dollar per day, together with such other necessary expenses as shall be in- curred by the agent in the performance of the duties of his office by direction of the state commissioner; provided that no per diem allowance for subsistence shall be audited or paid to any agent for any day or days during which the agent shall be engaged in official work in the city^, borough, village or town in which he resides. Each of such special agents shall execute and file in the office of the state comptroller a bond to the people of the state in such sum and with such sureties as the commissioner shall require, conditioned for the faithful performance of the duties of his office. 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 col- lection of liquor taxes and penalties under this act and in relation to the compliance with law by persons engaged in the traffic in liquors. Any such special agent may enter any place where liquors are sold at any time when the same is open, and may exam- ine any liquor tax certificate granted or purported to have been granted in pursuance of law. He may investigate any other mat- ters in connection with the sale of liquor and shall, under the direc- tion of the state commissioner, make verified complaints of criminal 14 Liquor Tax Law. [§ 10] violations of this act investigated by him, and forward the same to the state commissioner for examination, and, if approved, to be by him certified and forwarded to the district attorney for prosecution as provided in the case of other officers in section thirty-seven hereof. He shall be liable for penalties as provided in section thirty-eight of this act, for neglect by public officers. The state commissioner may employ necessary counsel in the department of excise, and may likewise designate and appoint an attorney or attor- neys to represent him or to act with the special deputy, special agent or county treasurer in the prosecution or defense of any ac- tion or proceeding brought under the provisions of this act. They shall be paid by the state treasurer, on the warrant of the comp- troller, such compensation as shall be agreed upon by the state com- missioner. All officers appointed or employed under the provi- sions of sections eight, nine and ten of this act may be removed by the state commissioner, who may appoint their successors as pro- vided by law. The state commissioner of excise may^ whenever in his judgment the ends of justice will be promoted thereby, by an in- strument in writing under his hand and official seal, upon the writ- ten request of the district attorney of any county, designate and appoint an attorney and counselor of the supreme court to act with, or for, and in the place of the district attorney in the investigation before a magistrate, and in the trial of any person or persons charged with a violation of the liquor tax law in any court having jurisdiction thereof. The attorney and counselor so appointed shall have and possess all of the powers and authority of the district attorney under this act, or conferred by the provisions of the code of criminal procedure, or of the penal code of this state in respect to the investigation, prosecution and trial of the case or cases speci- fied in such certificate of appointment, and may as assistant district attorney under the liquor tax law, issue subpoenas requiring the at- tendance of witnesses before a magistrate, or upon the trial of any person under indictment, or charged with any violation of the liquor tax law. The compensation and disbursements of an assist- ant to a district attorney appointed by. the state commissioner of excise shall be paid by the county treasurer of the county, or comp- [§ 10] Liquor Tax Law. 15 troUer or fiscal officer of the city to which such designation applies, upon the warrant of the state commissioner of excise, but such war- rant shall not be drawn until the attorney so designated shall pre- sent a duplicate itemized-account to the state commissioner of ex- cise for compensation and disbursements^ duly verified, which ac- count shall be audited and approved by the state commissioner in such sum as he deems reasonable and proper, and his warrant upon the county treasurer, city comptroller or fiscal officer shall be in the amount of the account presented as audited and allowed by him. If such treasurer, comptroller or fiscal officer has no funds in his hands applicable to the payment of such warrant, he shall at once borrow enough money upon the credit of the county, and is hereby authorized so to do, to pay said warrant and shall immediately pay the same. Thus amended, L. 1897, chap. 312; and L. 1903, chap. 486. SPECXa.L AGENTS. Confidential agents of State Commissioner. — In the case of People ex rel. Sweet V. Jjyman, 157 N. Y. 868, affirming 30 App. Div. 135, affirming 20 Misc. 80, it is said that the duties of a special agent are manifestly of a confidential nature; that " his acts are official acts performed for and in the name of the commissioner and are not only secret, but they also Involve a trust and confidence which are personal to the appointing officer. The duties cast upon the special agent involve sisill, integrity and liability personal to the officer he represents." Not accomplices. — "The methods to be adopted in the course of such in- vestigations are not specially defined or limited by the statute, and it was doubtless the intention of the legislature to leave to the state officials making such Investigations the largest discretion and latitude in respect to the methods to be adopted by them therein, provided, of course, that such methods do not interfere with any of the rights of the parties whose acts are under investigation. "It therefore seems clear that in the course of their investigation of the conduct of the defendant in her business of selling liquor, it was necessary and proper for the special agents to ascertain what was the particular kind of liquor which she was selling during the pro- hibited hours, and for that purpose to seek to be served with the liquor which she was ofEering for sale. 16 Liquor Tax Law. [§ H} "The evidence does not sbow that those agents offered any special invitation or inducement to the defendant to serve such liquor to them. The transaction was the ordinary one of ordering specified liquors in a liquor saloon and paying the usual prices for them. There Is no evidence that the plaintiff (the Stat? Commissioner of Excise) gave any particular Instructions or directions to the special agents as to how they should proceed in this particular investigation or that they were particularly directed by the plaintiff to do anything to induce this defendant to sell liquor to them during the prohibfted hours. And even if the plaintiff had given such particular instructions- to the special agents, I should not hold that such directions were improper nor that the carrying out of such directions made the plaintiff or his special agents participants in the defendant's wrong-doing."' Lyman v. Oussaiii, 33 Misc. 409; reversed, 65 App. Div. 27. Ifot detectives. — In the case of CulUnan v. Trolley Club, 65 App. Div. 202, it is held that special agents are state officers charged with the duty of investigating violations of the Liquor Tax Law, between whom and private detectives, hired to procure evidence at the instance and for the benefit of private persons, there is i. marked distinction, and that their testimony is not subject to the same scrutiny as that of the latter class, although their credibility may be considered by the jury in lilie maimer as other witnesses. § 11. Excise taxes upon the business of trafficking in liquors j\ enumeration. — Excise taxes upon the business of trafficking in liquors shall be of six grades, and assessed as follows : Subdivision 1. 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, 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 infei city or borough having by the last state census a popu- lationlof fifteen hundred thousand or more, the sum of twelve hun- dred dollars ; if in a city or borough having by said census a popula- tion of less than fifteen hundred thousand, but more than five hun- dred thousand, the sum of nine hundred and seventy-five dollars ; if [§ 11] Liquor Tax Law. 17 in a city or borough having by said census a population of less than five hundred thousand, but more than fifty thousand, the sum of seven hundred and fifty 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 five hundred and twenty-five dollars ; if in a city or village having by said census a population of less than ten thousand^ but more than five thousand, thg ^m of four hundred and fifty dollars; if in/a village having by sai^jeensus a population of less than five thousand, but more than twelve hundred, the sum of three hundred dollars ; if in any other place, the sum of one hun- dred and fifty dollars. The holder of a liquor tax certificate under this subdivision is entitled also to traffic iu liquors as though he held a liquor tax certificate under subdivision two of this section, subject to the provisions of section sixteen of this act. Subdivision 2. Upon the business of trafficking 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, booth or garden appertaining thereto or connected therewith, there is assessed an excise tax to be paid by every corporation, associa- tion, copartnership or person engaged in such traffic, and for each . such place where such traffic is carried on by such corporation, d&-f sociation, copartnership or persofif if the same be in a city or bor- ough having by the last state census a population of fifteen hun- dred thousand or more, the sum of seven hundred and fifty dollars ; if in a city or borough having by the said census a population of less than fifteen hundred thousand, but more than five hundred thousand, the sum of six hundred dollars ; if in a city or borough having by said census a population of less than five hundred thou- sand, but more than fifty thousand, the sum of four hundred and fifty dollars ; if in a city or village having by said census a popula- tion of less than fifty thousand, but more than ten thousand, the sum of three hundred 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 one hundred and fifty dollars ; if in a vil- lage having by said census a population of less than five thousand, 2 18 Liquor Tax Law. [§ 11] but more than twelve hundred, the sum of one hundred twelve and one-haK dollars; if in any other place the sum of seventy- five dollars. The holder of a liquor tax certificate under this subdivision, who is a duly licensed pharmacist, and the corporation, association or copartnership of which he is a member ia subject to the provisions of exception one of section thirty-one of this act, and to the provisions of section sixteen of this act. Subdivision 3. Upon the business of trafficking in liquors by a duly licensed pharmacist, which liquors can only be sold upon the written prescription of a regularly licensed physician, signed by such physician, which prescription shall state the date of the pre- scription, the name of the person for whom prescribed, and shall be preserved by the vendor, pasted in a book kept for that pur- pose, and be but once filled, and which liquors shall not be drunk on the premises where sold, or in any outbuilding, yard, booth or garden appertaining thereto or connected therewith, there is as- sessed an excise tax to be paid by such duly licensed pharmacist or the corporation, association or copartnership of which he is a mem- ber, engaged in such traffic, and for each such place where such traffic is carried on by such pharmacist, or by such corporation, asso- ciation or copartnership of which he is a member, the sum of seven and one-half dollars. The holder of a liquor tax certificate under this subdivision may sell alcohol, to be used for medicinal or me- chanical purposes, without a prescription, except during prohibited hours. Subdivision 3a. The holder of a liquor tax certificate under sub- division three of section eleven, upon the payment of the special tax hereinafter assessed, may, except during prohibited hours and subject to the further provisions hereof, sell liquor other than alco- hol in quantities of not more than one pint without the written pre- scription of a regularly licensed physician, no part of which shall be drunk on the premises where sold, or in any outbuilding, yard, booth or garden appertaining thereto or connected therewith. There is assessed upon each such sale the sum of ten cents. The state commissioner of excise shall prepare and issue to such certifi- [§11] Liquor Tax Law. 19 cate holders, upon application and upon payment therefor, suitable stamps of the value so specified which shall be affixed to each bot- tle containing any portion of such quantity sold as aforesaid and cancelled in such manner as the state commissioner of excise may direct. It is further provided that not more than one pint of liquor, whether of one or more kinds, shall be sold to one person on the same day, and each such sale shall be duly recorded in a book kept only for such purpose and such record shall give the date of sale^ the name of the purchaser and his or her residence and the kind and amount of such liquor, and such record shall be kept open for inspection by any special agent or peace officer. No sale of liquor under the provisions of this subdivision shall be permitted in any town in which, under section sixteen of this act, the sale of liquor under subdivision three of section eleven is pro- hibited. The excise taxes assessed and collected under this subdi- vision shall be distributed as are taxes assessed under subdivision four of this section. Subdivision 4. Upon the business of trafficking in liquors upon any car, steamboat or vessel within this state, to be drunk on such car or on any car connected therewith, or on such steamboat or ves- sel, or upon any boat or barge attached thereto, or connected there- with there is assessed an excise tax, to be paid by every corpora- tion, association, copartnership or person engaged in such traffic, and for each car, steamboat or vessel, boat or barge, upon which such traffic is carried on, the sum of three hundred dollars. Subdivision 5. The holder of a liquor tax certificate under sub- division two of section eleven of this act, who is engaged in the business of bottling malt liquors, or who bottles the same, and who sells such malt liquors at any place other than that stated in such liquor tax certificate, in quantities of less than five wine gallons, may sell and deliver from a vehicle to the occupant of a store or other building at such place of occupancy, malt liquors in bottles in a quantity of less than five wine gallons, but of not less than three gallons (or twenty-four pint bottles) at a time, provided he shall have obtained for each vehicle from which he so sells and de- 20 LiQUOE Tax Law. [§ 11] livers a special tax certificate permitting such traffic from such ve- hicle. There is assessed for each vehicle so employed an excise liquor tax of one hundred and fifty dollars. The state commis- sioner of excise shall prepare and issue such special liquor tax cer- tificate as shall be necessary to carry out the provisions of this sub- division, and such certificate shall at all times be carried with each such vehicle, or posted therein or thereon, in such manner as the state commissioner of excise shall direct. No sale or delivery of malt liquor under the provisions of this subdivision shall be per- mitted in any town in which, under section sixteen of this act, the sale of liquor, under subdivision two of section eleven, is pro- hibited. Subdivision 6. Upon the business of trafficking in alcohol in quantities of less than five gallons, which alcohol can only be sold between the hours of seven o'clock in the morniag and seven o'clock in the evening, on any day except Sunday, for use for me- chanical, medicinal or scientific purposes, by dealers who neither keep nor sell any liquors of any kind other than alcohol^ 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, associa- tion, 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 thirty-seven and one-half 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 thirty dollars ; if in X city having by said census a population of less than five hundred thousand, but more than fifty thousand, the sum of twenty-two and one-half dollars ; if in a city or village having by said census a pop- ulation of less than fifty thousand, but more than ten thousand, the STim of fifteen dollars; if in any other place, the sum of seven and one-half dollars. No liquor tax certificate issued under sub- divisions three, five or six of this section, shall be transferred or as- signed, and no rebate shall be allowed or paid upon the surrender or cancellation thereof. If there be more than one bar, room or [§ 11] Liquor Tax Law. 21 place on the premises, car, steamboat, vessel, boat or barge, at which the traffic in liquors is carried on under any subdivision of this section, a like additional tax is assessed for each such addi- tional bar, room or place. Subdivision 6a. Upon the business of trafficking in liquors in ■quantities of less than five wine gallons, but not less than two wine gallons, in any town, by a grower of fruit therein, or a manufactu- rer of any liquor produced solely therefrom in such town, which liquor can only be sold between the hours of seven o'clock in the morning and seven o'clock in the evening on any day, except Sun- day, no part of which shall be drunk on the premises where sold, or in any outbuilding, yard, booth or garden appertaining thereto or connected therewith, and no part of which liquors shall be sold to or for any resident of said town, except the holder of a liquor tax certificate under subdivision three of section eleven of this act, in case traffic in liquors therein to be drunk on the prem- ises where sold is prohibited as the result of a vote on local option pursuant to section sixteen of this act, 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, the sum of seventy-five dollars for each excise year, or any part thereof, during which such traffic is carried on, and no liquor tax certificate issued under this subdivision shall be transferred or assigned, and no rebate shall be allowed or paid upon the surrender or cancellation thereof. Subdivision Y. Enuineration. — When the population of a city or village is not shown by the latest state census, it shall be deter- mined for the purposes of this act by the latest United States cen- sus, 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, in his discretion, to cause an enumeration of the inhabitants to be taken in such city or village. He may also cause to be taken an enu- meration of the inhabitants of any hamlet or unincorporated vil- lage, after first having established a limit or boundary line around. 22 Liquor Tax Law. [§ H] such hamlet or unincorporated village, within which limit or boun- dary line such enumeration may be taken. Whenever a limit or boundary line shall have been established around any hamlet or unincorporated village such limit or boundary line shall be de- scribed and certified to by the state commissioner of excise and be entered of record and become part of the records of the state de- partment of excise, and such limit or boundary line shall not be changed for a period of five years after the date of recording the same, unless such hamlet or unincorporated village become an in- corporated village, with corporate limits and boundary lines differ- ent from those established by the state commissioner of excise, in which case such newly incorporated village may be enumerated as hereinbefore provided in this section. If since the latest state enumeration was taken, the boundaries of the city shall have been changed by the addition of territory not in the same judicial dis- trict, such annexed territory shall not be deemed to be a part of such city for the purposes of determining the amount of excise tax assessed therein by this act; but the inhabitants of such annexed territory shall be enumerated for purposes of so determining such excise tax and, except as to the amount of the excise tax so deter- mined, all the provisions of this act shall be applicable to such an- nexed territory and the excise tax assessed in such annexed terri- tory shall be paid to the city to which such territory shall have been annexed. The amount of excise tax in every place in this state shall remain the same as assessed for the year eighteen hun- dred and ninety-nine, until changed by an enumeration authorized by the state commissioner of excise, or by an increase or decrease of population shown by a subsequent state or United States census,^ and such excise tax assessed in each place enumerated under this subdivision and assessed in each place where a change in the popu- lation is shown by the latest state or United States census shall be the same as that provided in subdivisions one, two, three and six of this section, for places containing the same population. The excise taxes assessed under this act in cities containing a population of fifteen hundred thousand or more, which are or sball be formed by the consolidation of territory situate in one or more counties^ [§11] Liquor Tax Law. 23 shall be assessed in the several boroughs or portions of the terri- tory so consolidated to form such city at an advance of one-half in the rate over the amount at which such taxes were assessed on the thirty-first day of December, nineteen hundred and two, in the several portions of the territory so consolidated. The state com- missioner of excise shall immediately certify the result of an enu- meration taken by him under the provisions of this act to the treasurer or special deputy commissioner of the county or borough in which the territory so enumerated by him or any part thereof is situated, which certificate shall be evidence of the facts therein stated. Thus amended, L. 1897, chiap. 312; L,. 1900, chap. 367; L. 1901, chap. 640; li. 1903, chap. 115 and chap. 486. EXiCISE TAXES. Constitutionally assessed, though not uniform. — The constitutionality of the Liquor Tax Law, and particularly this section of said act, was first raised in a proceeding instituted against the Commissioners of Excise In the City of New Yorlj to review their determination in refusing to issue a license under L. 1892, chap. 401, for a period extending beyond April 30, 1896, in disregard of § 3 of this act. The law was held to be constitutional in every respect; that it was not a tax law but an exercise of the police power, merely designed to regulate the liquor traffic, and that the tax need not be uniform. People ex rel. Einsfeld v. Murray, 149 N. Y. 367, affirming 4 App. Div. 185. See also Kresser v. Lymwn, 74 Fed. Rep. 765; Balogh v. Lyman, 6 App. Div. 271. Equivalent to license fees. — In Scalso v. Saclcett, 30 Misc. 543, it is held that the money paid and collected under the Liquor Tax Law is not "a tax in the sense of an assessment upon citizens for the support of the government which protects their i)ersons and property, but is imposed upon a class as a contribution from them to aid the govern- ment for those expenditures which the business they are privi- leged to conduct may entail upon the public generally, as a portion of the causes which lead to pauperism and crime. It is, therefore, in substance, a tax upon a special character of business the payment of which privileges the conduct of the business, and the liquor tax certificate is simply the evidence of that privilege, although it may be transferable and valuable as property." 24 Liquor Tax Law. [§ 12] Tax rates in New York City.— The use of the word "borough" in L. 1903, chap. 115, does not have the effect of classifying excise taxes through- out the several boroughs In New York City according to their present population. The substantial re-enactment of D. 1897, chap. 442,Jndl- cates an intentlion to merely increase by fifty per cent the taxes assessed in the various portions of territory in said city prior to the enactment of the Greater Neiw York Charter. People ex rel. Oress v. EilUard, 40 Misc. 589, affirmed, 85 App. Dlv. 507. Tax rate in enumerated hamlets. — In establishing a boundary line around a hamlet or unincorporated village and in enumerating the inhabitants thereof pursuant to this section, the State Commissioner of Excise may properly Include a little settlement which locally has its own name, but which practically forms a part of the unincor- porated village, or may include several hamlets within a single limit so long as they are so close together as to constitute for all purposes of trade and association a single community. He may also Include portions thereof which are situated In a township where trafficking in liquors is prohibited. Matter of Lyman v. Bradsted, 26 Misc. 629. But it seems that, when any portion of such a hamlet or unincor- porated village becomes Incorporated, excise taxes should be assessed therein under the general provisions of this act instead of pursuant to an enumeration taken by the State Commissioner of Excise under its special provisions, because the district incorporated is no longer a part of the hamlet enumerated. People ex rel. Briggs v. Lyman, 48 App. Dlv. 484, affirmed (without opinion) 163 N. Y. 602. Additional excise tax for each, separate bar, room or place. — A liquor tax certificate must be obtained for and posted in each bar, room or place distinctively for the sale of liquor, but the business of traffick- ing in liquors at a place for which a certificate has been obtained comprehends something more than the serving of liquors over a bar and may Include the distribution of liquors by waiters elsewhere about the place where the bar is located. Matter of Lyman v. Texter, 59 App. Dlv. 217, affirming 32 MiBC. 210; Matter of Lyman v. Malcolm BreuAng Co., 160 N. Y. 96, affirming 40 App. Dlv. 46; Cullinan v. Stmn, &i App. Dlv. 292. But the sale of liquors by a certificate holder in another room in another building than his licensed place is not permissible. Matter of Cullinan v. Smith, unreported decision of *Maddox, J. S. O. § 12. Tax, when due and payable — The several amounts to be paid as taxes under this act are assessed yearly, commencing on the * Opinion on file In Department of Excise. [§13] Liquor Tax Law. 25 first day of May, eighteen hundred and ninety-six, and shall be paid yearly on the first day of May of each year, and said assess- ments together with any penalty that may become due by reason of the violation of any of the provisions of this act, shall attach to and operate as a lien on the property on and in said premises where such traffic in liquors is carried on or elsewhere belonging to the corporption, association, copartnership or person from whom such tax is due ; provided, however, that when such traffic shall be com- menced after the said first day of May in any year, said assessment shall, for the balance of the year, be in proportion as the remain- der of the year shall be to the whole year, except that it shall in no case be for less than one-twelfth of a year — any part of a month being computed as one month — and the said amount shall attach and operate as a lien as aforesaid, at the date of such commence- ment. This section is subject to the provisions of section four of this act relating to licenses in force at the date of the passage of this act. § 13. Officers to whom the tax is to be paid and how distributed The taxes assessed, and all fines and penalties incurred under this act in coimties or boroughs having a s pecial de puty commissioner^-^ pofexdse shall be collejjtedJ^f-and_paid_touhim.' In all other coiin- Ifi^ su^^^taxes^jteses and penalties^s hall be collected by and paid ' to the county treasurer of the county in which the traffic is carried _^^1M except that the taxes assessed under subdivisions four and five of section eleven of this act, and all fines and penalties in connec- tion therewith, shall be collected by and paid to the state commis- sioner of excise and by him to the state treasurer. One-haK of the revenues resulting from taxes^ fines and penalties under the pro- visions of this act, less the amount allowed for collecting the same, shall be paid by the county treasurers, and by the several special deputy commissioners receiving the same 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 appropriated to the payment- of the current general expenses of the state and the remaining one-half thereof. 26 Liquor Tax Law. [§ 13 J 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, or by the special deputy commissioner to the super- visor of such town, or to the treasurer or fiscal officer of such city, within ten days from the receipt thereof. All excise moneys col- lected by county treasurers and special deputy commissioners of excise shall be deposited until the same shall be paid over to the state treasurer or local fiscal officer as is herein provided, in banks or other depositories designated by the state commissioner of excise, who shall require from each such bank or depository a bond running to the people of the state of Ifew York in such penalty and -with such sureties as shall be approved by the said state com- missioner, conditioned that such bank or depository will safely keep all such moneys that may be so deposited in or held by it on deposit and will promptly pay the same over at any and all times- upon legal demand therefor. Action on said bond for any default or violation of its conditions may be brought by the state commis- sioner of excise who shall distribute the amount of money recovered to the locality and the state as their respective interests may appear. At the time of making such payment the special deputy commissioner or county treasurer shall furnish to the offi- cer of such city or town to whom such payment is made a written statement under oath stating when such money was received and from whom received; and that the statement includes all the moneys received to a date named in such statement. 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 for the appropriation and expenditure of sums received for excise licenses or in such other manner as may hereafter be provided by law ; and any portion of such revenues not otherwise specifically appropriated by law may be applied to the ordinary expenses of the city or town. Any special deputy commissioner or county treasurer who shall neglect or refuse to apportion and pay over such moneys, as above provided, shall, in addition to the fines and penalties otherwise provided in this act, be liable to a penalty of [§13] . Liquor Tax Law. 27 fifty dollars for each and every offense, to be recovered in an action by the officer entitled to receive such excise moneys, brought by such officer in the name of the city or town entitled thereto, with costs, in addition to the money unlawfully withheld ; and if any special deputy commissioner or county treasurer shall wil- fully make and verify a false statement under this section, he shall be guilty of perjury. Thus amended, D. 1897, chap. 312; L,. 1900, chap. 367; U 1903, chap. 115 and chap. 486. Iiiability under depository bond. — The surety of a bank, in which excise moneys are deposited under this section, is liable under the bond given to secure the safe keeping of such excise moneys and the prompt payment thereof upon legal demand therefor, not only for the non-payment by the bank of uncertified checks payable to the order of the fiscal oflScers, to whom excise moneys on deposit belonged, but also liable for certain other such checks certified by the bank at the request of the Deputy Excise Commissioner, who deposited such excise moneys, where the delivery of such checks to the payees and the presentation thereof by such payees was not unduly delayed. CulUnan v. Union Surety and Guaranty Compcmy, 79 App. Div. 409. STATTJTOBY DISTKIBXTTION OF EXCISE TAXES. Constitutional. — ^The distribution of excise taxes pursuant to this section has been declared constitutional, they not being considered public moneys, and provision therefor not being considered an appropriation thereof to local or private purposes. People ex rel. Einsfeld v. Murray, 149 N. Y. 367, affirming 4 App. Div. 185. According to this decision the provisions of this section " operate on the fund at the very moment of Its collection." Prescribed rule inflexible. — Explicit directions as to the manner of the disposition of money received in payment of excise taxes, having been prescribed by this section, subject to a contingency arising under § 29, such money may not be otherwise appropriated, as for the payment of costs under § 28, Matter of Seymour v. Toti Evera, 47 App. Div. 320; for the repayment of moneys paid in excess of proper excise taxes, Baker v. Bucklin, 43 App. Div. 336, affirming 22 Misc. 560; or other- wise Improperly paid, EilUard v. Oiese, 155 N. Y. 702, affirming (with- out opinion) 25 App. Div. 222; for the payment of rebates, Qing v. Sherry, 32 App. Div. 354; Albany Bretoing Co. v. Barckley, 42 App. Div- 28 Liquor Tax Law. [§ 15] 335; or pursuant to a special act of the legislature which literally construed is Inconsistent with, but which construed liberally is in harmony with the general scheme of the Liquor Tax Law. People ex rel. Town of Plattshurgh v. Williams, 162 N. Y. 240, reversing 47 App. Div. 88, reversing 29 Misc. 463. § 14. Compensation of county treasurers. — As full compensation and in full payment of all charges and expenses for collecting the taxes herein provided for, and keeping the necessary books, and making the necessary reports, aa required by the state commissioner of excise, and issuing the liquor tax certificates, the oflBcer charged therewith, shall be allowed in counties contain- ing a city of the first or second class or any part thereof one per i'entum on the amount of taxes, penalties and fines collected except as provided in section nine; in coimties containing a city of the third clasSj but not a city of the first or second class or any part thereof, two per centum; in all other counties, three per centum, which amount shall be deducted and retained by him from the moneys so collected, and charged one-half to the state and one- half to the locality to which the tax belongs. The provisions of this section shall not operate to reduce the per centum heretofore allowed for compensation of county treasurers in counties which now contain a portion of a city of the first or second class. Thus amended, L. 1898, chap. 167; and L. 1908, chap. 486. § 15. Books and blanks to be furnished by the state commissioner of excise. — ^Immediately upon the passage of this act the state com- missioner of excise shall cause to be prepared the necessary books for his office and shall also cause to be prepared and furnished to each special deputy commissioner and to each county treasurer in counties not containing a city of the first class, the necessary and proper books of record, and books in which accounts shall be kept of all taxes, or other moneys accruing and collected under the pro- visions of this act, and the necessary blanks for reports, and the blanks necessary for the application for liquor tax certificates, and the blank bonds and liquor tax certifi- cates provided for in this act, which books, blanks and certificates [§ 15] Liquor Tax. Law. 29' shall be uniform throughout the state. Such books of record and account and all reports, applications and bonds, when filed, shall be public records. The necessary expenses of preparing such books and blanks and certificates shall be paid out of the treasury of the state from any funds not otherwise appropriated. He shall furnish to each county treasurer in counties not containing a city of the first class, and to each special deputy commissioner, who' shall keep the same, a record book showing the following facts : 1. The name of each corporation, association, copartnership or person upon which or whom a tax is assessed under the provisions of this act. 2. The name of each corporation, association, copartnership or person paying a tax under the provisions of this act. 3. The name of each corporation, association, copartnership or person to which, or to whom, a certificate of the payment of such tax is issued. 4. Under which of the subdivisions of section eleven of this act such certificate of the payment of such tax is issued. 5. The date when such tax is assessed and the date of the com- mencement of the term for which issued. 6. The term for which such certificate is issued and the date of the ending thereof. 7. The amoimt of the tax assessed. 8. The amount of tax paid. 9. The date when paid. 10. The location of the premises where the traffic is carried on.. 11. The name and residence of each surety or corporation on the bond of the corporation, association, copartnership or person; to whom the tax certificate is issued. 12. The amount of each fine or penalty and the costs, if any. 13. The amount collected. 14. The amount of the expenses of such collection. 30 Liquor Tax Law. [§ 16] 16. The date of the surrender or cancellation of any tax certifi- cate and the cause therefor. 16. The amount of tax refunded, if any, upon such surrender or cancellation. 17. Said special deputy commissioner or county treasurer must keep a separate and distinct account of all excise moneys received and paid over by him ; and such moneys must be deposited without delay in a bank or other depository, and kept in a separate account, in the official name of such officer, entitled " liquor tax moneys." Such officer shall also keep all such books of account and in such form as the state commissioner of excise shall provide and direct, and shall render to such commissioner such reports and exhibit such records, accounts and vouchers as he may from time to time require, which reports shall be verified if the state commissioner shall so direct. The willful making of a false statement under oath in any such report shall be perjury, and in addition thereto shall subject the person guilty to the penalty and punishment pre- scribed in section thirty-eight of this act. All interest accruing on undivided excise moneys deposited by any county treasurer or special deputy commissioner of excise, and all interest accruing on the part thereof apportioned to the state shall belong to the state of New York, and shall be remitted by such county treasurer or special deputy commissioner to the state treasurer. All interest moneys accruing on the part thereof belonging to the localities, until the same shall be actually withdrawn from the bank of deposit, upon the check of the county treasurer or special deputy commissioner, by the fiscal officer of the locality entitled thereto, shall belong to the county or city represented by such treasurer or special deputy commissioner, and shall be placed to the credit of the general fund thereof as often as once in each three months. Thus amended, L. 1897, chap. 312; and L. 1903, chap. 486. § 16. Local option to determine whether liquors shall be sold under the provisions of this act. — In order to ascertain the will of the qualified electors of each tovra, the following questions shall t§ 16] Liquor Tax Law. 31 be submitted at each biennial town meeting hereafter held in any town in this state, provided the electors of the town to the number of ten per centum of the votes cast at the next pre- ceding general election shall request such submission by written petition, signed and acknowledged by such electors before a notary public or other officer authorized to take acknowledgments oi administer oaths, which petition shall be filed not less than twenty days before such town meeting with the town clerk of the town ; Question 1. Selling liquor to be drunk on the premises where sold. — Shall any corporation, association, copartnership or person be authorized to traffic in liquors under the provisions of subdi- vision one of section eleven of the liquor tax law, namely, by sell- ing liquor to be drunk on the premises where sold, in (here insert the name of the town) ? Question 2. Selling liquor not to be drunk on the premises where sold. — Shall any corporation, association, copartnership or person be authorized to traffic in liquors under the provisions of subdivision two of section eleven of the liquor tax law, namely, by selling liquor not to be drunk on the premises where sold, in (here insert the name of the town) ? Question 3. Selling liquor as a pharmacist on a physician's prescription. — Shall any corporation, association, copartnership or person be authorized to traffic in liquors under the provisions of subdivision three of section eleven of the liquor tax law, namely, by selling liquor as a pharmacist on a physician's prescriptira, in (here insert the name of the town) ? Question 4. Selling liquor by hotel keepers only. — Shall any corporation, association, copartnership or person be authorized to traffic in liquors under subdivision one of section eleven of the liquor tax law, but only in connection with the business of keeping a hotel, in (here insert the name of the town), if the majority of the votes cast on the first question s.ubmitted are in the negative ? The town clerk shall, vrithin five days from the filing of such pe- tition in his office, prepare and file in the office of the county clerk 32 LiQuoK Tax Law. [§ 16] of the county a certified copy of sucIl petition, provided the town meeting at which said questions are to be submitted is to be held at the time of the general election. The town clerk shall also, at least ten days before the holding of such town meeting or general election, cause to be printed and posted in at leastfour public places in such town, a notice of the fact that all of the local option ques- tions provided for herein will be voted on at such town meeting or general election ; and the said notice shall also be published, at least five days before the vote is to be taken, once, in one news- paper published in the county in which auch town is situate, which shall be a newspaper published in the town, if there be one. Whenever such questions are to be submitted under the provisions of this act, it shall be the duty of each officer charged by law with the duty of preparing the official ballots for such town meeting or election, to have prepared at the time fixed by law for preparing the official ballots for such town meeting or election, the ballots required by the election law for voting upon any constitutional amendment, proposition or question in the form and of the num- ber required by the election law, upon the face of which shall be printed in full the said questions, as heretofore stated. Any elector qualified to vote for town, county or state officers at such town meeting or general election shall be entitled to vote upon such local option questions. As soon as the town meeting or election shall be held, a return of the votes cast and coimted shall be made as provided by law, and if the majority of the votes shall be in the negative or if the number of votes cast for and against shall be equal on either of such questions, no corporation, asso- ciation, copartnership or person shall thereafter so traffic in liquor* or apply for or receive a liquor tax certificate under the subdivision or subdivisions of section eleven, referred to in the question or questions upon which the number of votes cast for and against shall be equal or upon which the majority of the- votes shall have- been cast in the negative, except as provided by clause " j " of sec- tion thirty-one of this act. But if the majority of the votes cast on the fourth question submitted are in the affirmative, and a majority of the votes cast on the first question submitted are not in; [§ 16] Liquor Tax Law. 33 the affirmative, a liquor tax certificate may be granted under sub- division one of section eleven to the keepers of hotels, who may traffic in liquor to be drunk in the hotel and off the premises, though the majority of the votes cast on the second question sub- mitted are not in the affirmative. If the majority of the votes cast on the second question submitted shall be in the affirmative, the holder of a liquor tax certificate under subdivision two of sec- tion eleven, who is a pharmacist, shall not sell as a pharmacist unless the majority of the votes cast on the third question sub- mitted are in the affirmative. The status existing at the time such vote is taken upon questions submitted shall not be changed unti] the first day of May following next thereafter, prior to which time such vote shall neither authorize the issuance of liquor tax certifi- cates in accordance therewith or preclude the issuance of such certificates in accordance with the result of the preceding vote on such questions submitted, nor shorten the term for which any liquor tax certificate may have been lawfully issued, nor affect the rights of any person thereunder. If for any reason except the failure to file any petition therefor, the four propositions provided to be submitted herein to the electors of a town shall not have been properly submitted at such biennial town meeting, such propositions shall be submitted at a special town meeting duly called. But a special town meeting shall only be called upon filing with the town clerk the petition aforesaid and an order of the supreme or county court, or a justice or judge thereof, respectively, which may be granted upon eight days notice to the state commissioner of excise, sufficient reason being shown therefor. The town clerk shall within five days after the filing of such petition and order, call a special town meeting to be held at a time not less than twenty days nor more than thirty days after the filing of such petition and order, and he shall also cause to be printed, posted and published a notice of such special town meeting, containing a clear and concise statement of the purpose thereof, and shall prepare ballots therefor in all respects as is pro- vided by this act in the case of a biennial town meeting, and the result of the vote thereat shall be canvassed, certified and returned a 34 Liquor Tax Law. [§ 16] in like maimer and shall take effect at the beginning of the next excise year, that is, on the first day of May following such vote, as is provided when a vote is taken at a biennial town meeting. A certified copy of the statement of the result of the vote, upon each of such questions submitted, shall, immediately after the submis- sion thereof, be filed by the town clerk or other ofiicer with whom returns of town meetings are required to be filed by the election law with the state commissioner of excise and also with the county treasurer of the county, or with the special deputy commissioner for counties containing a city of the first class, which also contains a town, and no liquor tax certificate shall thereafter be issued by such officers to any corporation, association, copartnership or per- son to traffic in liquor in said town under such subdivision of sec- tion eleven of this act upon which a majority of the votes may have been cast in the negative, except as otherwise provided in this act. Thus amended, L. 1897, chap. 312; K 1899, chap. 398; L. 1900, chap. 367; and L. 1901, chap. 640. See also L. 1897, chap. 775; L. 1898, chap. 497; and L. 1903, chap. 458. LOCAL OPTIOU rw TOWNS. Local option questions. — The statute contemplates and requires the sub- mission of all the propositions provided for in this section, whenever such questions are to be voted upon by the electors of the town. Matter of Getman, 28 Misc. 451. In submitting these questions, it is not an absolute requirement that they be numbered as in the statute. Matter of Arnold, 32 Misc. 439. A submission of the fourth question in the form provided by the original statute subsequent to the change therein by amendment is not necessarily fatal to the validity of the vote. Matter of Arnold, 32 Misc. 439. But a contrary view is held in People ex rel. Caffrey v. Mosso, 30 Misc. 164. Legality of local option vote assumed by certificate issuing officers. — Scrupulous observance of the expressed will of the i>eople in relation to the issuance of liquor tax certificates is required of all certificate issuing oflBcers. If the ma.1ority of the town electors have voted against the issuance of liquor tax certificates, it is not for the county treasurer or special deputy commissioner of excise to make inquiry as to whether the election was regular or not, and, if in his judgment I§ 16] Liquor Tax Law. 35 it was not, to ignore the result and issue certificates; neither will a court reviewing his refusal to issue certificates enter into the ques- tion. The validity of the result of an alleged Irregular expression of the popular will on the subject of local option may not be thus col- laterally assailed. People ex rel. Fisher v. Hasbrouch, 21 Misc. 188; People ex rel. Leonard v. Eamilton. 42 App. Div. 212, alBrming 27 Misc. 308; People ex rel. Glint v. Bamilton, 27 Misc. 360; People ex rel. Smith V. Foster, 27 Misc. 576; People ex rel. Smith v. Hamilton, 29 Misc. 465; Matter of Rogers, — Misc. — . And if, in disregard of local option vote, a certificate should be issued it may be revoked and cancelled. Matter of Clement v. Wilcox, 29 Misc. 29. Or, if a local option vote has not been certified to the certificate issuing officer, nevertheless, liquor tax certificates should not be applied for nor issued contrary thereto. Matter of I/yman v. Wells, 28 Misc. 278; People ex rel. Smith v. Foster, 27 Misc. 576. « Or, if the statement of the result of a local oi)tion vote has been Incorrectly certified, certificates may not be held in such town contrary to the actual result Matter of Brown v. Bouton, 38 Misc. 157. Mandamus not remedy for irre^larities. — The practice of attacking the validity of a local option vote by Invoking mandaimus to compel election boards to cast out local option ballots because of some irregularity in the submission of the local option questions, has been disapproved, it being held that election boards are always bound to count ballots regular in form, and that inasmuch as it is the province of mandamus to compel the performance of legal duties, it will not lie against them to cast out such ballots. Matter of O'Hara, 63 App. Div. 512; People ex rel. Narrow v. Mein, 66 App. Div. 615. Mandamus requiring a reeanvass of votes rejected and not counted as well as votes marked for identification and counted, seems, how- ever, to be authorized by section 114 of the Election Law. People ex rel. Decker v. ParmeUe, 22 Misc. 380. Special town meetings unauthorized when. — In the absence of a proper petition for the submission of the local option questions duly filed, the electors of a town have no right to express their will in relation thereto and a special town meeting may not be held for the purpose of resubmitting such local option questions. Matter of Krieger, 59 App. Div. 346; Matter of Rogers, — Misc. — . Special town meetings permissible when. — ^In the event of any other irregularity in the manner of submitting the local option questions, the statute provides for their immediate resubmission at a special town meeting called for that purpose, provided a court of competent 36 Liquor Tax Law. [§ 16] Jurisdiction, in its discretion, so orders. Matter of O'Eara, 40 Misc. 355. Wlietlier tlie petition for sncli resubmission must be filed in tlie Town Clerii's office prior to application for an order directing tlie Town Clerk to call a special town meeting is a matter of practice upon which the decisions are conflicting. Matter of Sullivan, 30 Misc. 682, affirmed (without opinion) 52 App. Div. 634; Matter of Bertrend, 40 Misc. 536. The provisions of the statute requiring notices to be posted and published by the town clerk were deemed to be mandatory in Matter of Powers, 34 Misc. 636, and Matter of Sullivan, 34 Misc. 598, where the local option questions were ordered resubmitted because such notices were not posted or published at all. But these provisions of the statute were deemed only directory and special town meetings were not ordered in Matter of Rowley, 34 Misc. 662, where such notices were neither posted nor published; in Matter of O'Bara, 40 Misc. 355, where such notices were posted the required time, but not published; in Matter of Woolstgn, 35 Misc. 735, where informal notices were posted and published the required time, but amended notices posted and published only five days; in Matter of France, 36 Misc. 693, where notices were posted only five days and not published, and in People ex rel. Crane v. Chandler, 41 App. Div. 178, where notices were posted only four days and not published, and where, in each of these cases, it appeared to the satis- faction of the court that such actual notice of the proposed submis- sion of the local option questions had reached the electors that a full and fair vote resulted notwithstanding the absence of the statutory notice. In the Matter of O'Eara, 40 Misc. 355, it is said: "In any case where the statutory notices are not given, the election is irregular and should be set aside unless it fairly appears that no injury arose from such irregularity. But where an actual notice was in fact given to all electors, they cannot be prejudiced from the fact that the formal legal notice was not given. It ought to be sufficient to assume prima facie that an irregularity in giving notice is prejudicial and makes a proper cause for resubmission; but when it affirmatively appears that the public has not suffered by such irregnilarity and that full notice was in fact given, the end designed to be accomplished by the statutory notice is reached, and a court, vested with discretion, will not follow the strict letter of the law in utter disregard of its spirit and intent, and for a technicality, sacrifice the substance." As was stated in Matter of Woolston, 35 Misc. 735: " If too much particularity is required in carrying out the provisions of these statutes, then they will In more Instances than not, defeat themselves, and the will of the people, which is the controlling object to be safe- [§ 16] Liquor Tax Law. 37 guarded, will be subverted. The Individuals to v^hom the Legislature has delegated the duty of performing these services are not, in the vast majority of cases, persons learned in the law, but are persons of ordinary education and business ability, and this the Legislature knew. In giving judicial Interpretation to the law and the sufficiency of compliance with it, these facts ought to be taken into consideration, and where there is a substantial compliance with its provisions and no fraud, concealment or deception is practiced, the acts of the offi- cials should be upheld." The principle laid down In People eae rel. HirsJi v. Wood, 148 N. Y. 146, that the object of elections is to ascertain the popular will and not to thwart it, and that electors are not to be disfranchised by the mistakes or even wilful misconduct of election officers in performing their duties, has been approved in all cases where the local option questions have been regularly submitted to the electors of a town but the town officers have been. In some respeot, derelict in their duties, as where a town clerk fails to furnish the county treasurer with a sufficient statement of the result. People eao^ rel. Leonard v. Hamilton, 42 App. Div. 212, affirming 27 Misc. 308; People ex rel. Clint y. Hamilton, 27 Misc. 360; People ex rel. Smith v. Foster, 27 Misc. 576. Or, where the town board merely fails to make complete return of the blank ballots or those rejected as void. People ex rel. Guernsey V. Pierson, 35 Misc. 406, affirmed (without opinion) 64 App. Div. 624; Matter of Bertrend, 40 Misc. 536. Or, where the duties of certain election officers have been performed by persons irregularly chosen. People ex rel. Guernsey v. Pierson, 35 Misc. 406, affirmed (without opinion) 64 App. Div. 624. But if the negligence of the election officers prevents the electors from having a fair opportunity to vote and thus express their will on the subject of local option, an application of the same rule requires the granting of relief from an imperfect result. Matter of Griffln, 35 Misc. 632. Special town meeting regulations. — Special town meetings must proceed without any substantial departure from the forms prescribed by law, designed to assure a full vote and opportunity of expression. To narrow the privilege of voting to a limit of three or four hours is such a substantial departure from the statutory authority and its object as to make ineffective a local option vote radically changing the policy of a town. People ex rel. Richardson v. Sackett, unreported decision of ♦Russell, J. S. O. When local option vote takes effect. — Although no effect can be given to an Irregular vote upon the local option questions, (see People ex rel. Wood V. Toion Canvassers, 32 Misc. 131) the vote had at a special town * Opinion on file in Department of Excise. 38 LiQUOK Tax Law. [§ 17] meeting, not held until the first day of May, cannot take effect untij a year from that date as the statute expressly declares. People ex reL Taylor v. Ely, unreported decision of *Kenefick, J. S. 0. § 17. Statements to be made upon application for liquor tax cer- tificates. — ^Every corporation, association, copartnership or person liable for a tax under subdivisions one, two, three or six of section eleven of this act shall, on or before the first day of May of each year, or if now holding a license legally granted by any board of excise, then on or before the termination of such license, prepare and make upon the blank which shall be furnished by the county treasurer of the county and in counties containing a city of the first class by the special deputy commissioner for such county, upon application therefor^ a stateme nt which shall be__given to such county treasurer or special deputy, signed and sworn to by such applicant or applicants, or by the person making such application in behalf of a corporation or association, stating : 1. The name of each applicant, and if there be more than one and they be partners, also their partnership name, and the age and residence of the several persons so applying, and the fact as to his. citizenship. 2. The name and residence of every person interested or to become interested in the traffic in liquors for which the statement is made, unless such applicant be a corporation or association, in which case the person making the application in behalf of the cor- poration or association shall set forth, instead, the name of the corporation or association, the state under the laws of which it is organized, and the nature of his authority to act for such corpora- tion or association. 3. The premises where such business is to be carried on, stating the street and number, if the premises have a street and number^, and otherwise such apt description as will reasonably indicate the locality thereof, and also the specific location on the premises of the bar or place at which liquors are to be sold. 'Opinion on file in Department of Excise [§ 17] Liquor Tax Law. 39 4. Under whicli subdivision of section eleven of this act the traffic in liquors is to be carried on, and what, if any, other business is to be carried on in connection therewith, or on the same prem- ises, by the applicant or .any other person; and also what, if any, other business is to be carried on by the applicant or by another in any room adjoining, which is not entirely separated from the room in which the traffic in liquors is to be carried on, by solid partition at least three inches thick extending from floor to ceil- ing, without any opening therein. 5. And a statement that such applicant has not been convicted of a felony ; has not had a license revoked under the laws in force immediately prior to March twenty-third, eighteen hundred and ninety-six, by reason of a violation of such laws ; has not been con- victed of a violation of this law within three years prior to the date of such application ; does not, as owner or agent, carry on, or per- mit to be carried on, nor is interested in any traffic, busuiess or occupation, the carrying on of which is a violation of law, and may lawfully carry on such traffic in liquors upon such premises^ under such subdivision, and is not within any of the prohibitions of thia act. Also how many buildings occupied exclusively as dwellings there are, the nearest entrance to which is within two hundred feet, measured in a straight line, of the neares.t entrance to the premises where the traffic in liquors is intended to be carried on, and whether the applicant intends to traffic in liquors under the certifi- cate applied for in any building, yard, booth or other place, which is on the same street or avenue and within two hundred feet of a building occupied exclusively as a church or school house, and if either question is answered affirmatively that there are any such dwellings, church or school buildings, then said applicant shall also state whether such traffic in liquors was actually lawfully carried on in such premises on March twenty-third, eighteen hundred and ninety-six, and, if yes, the date since which said premises have been continuously occupied for such traffic in liquors; also whether said premises were actually occupied as a hotel on March twenty- third, eighteen hundred and ninety-six, and if yes, the date since which said premises have been continuously occupied as a hotel. 40 LiQUOE Tax Law. [§ 17] 6. There shall also be so filed simultaneously with said state- ment, a consent in writing that such traffic in liquors be so carried on ia such premises, executed by the owner of the premises, or by his duly authorized agent, and acknowledged as are deeds entitled to be recorded; except in cases where such traffic in liquors was actually lawfully carried on in said premises so described in said statement on the twenty-third day of March, eighteen hundred and ninety-six, in which case such consent shall not be required. 7. If such traffic is to be carried on in any building or place owned by the public, or in any building or place situate on land owned by the public such applicant or applicants shall at the same time file with such county treasurer, or special deputy, the written consent of the authorities having the custody and control of such building, and of the land on which it is situated for the traffic in liquors therein. 8. 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, measured in a straight line, of the nearest entrance to a building or buildings occupied exclusively for a dwelling, there shall also be so filed simultaneously with said state- ment a consent in writing that such traffic in liquors be so carried on in said premises during a term therein stated, 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, and acknowledged as are deeds entitled to be recorded, except that such consent shall not be required in cases where such traffic in liquor was actually lawfully carried on in said premises so described in said statement on the twenty-third day of March, eighteen hundred and ninety-six, nor shall such consent be required for any place described in said statement which was occupied as a hotel on said last-mentioned date, notwithstanding such traffic in liquors was not then carried on thereat. 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 further l§ 17] Liquor Tax Law. 41 ■or other consent for trafficking in liquor on such premises shall be required so long as such premises shall be continuously occupied for such traffic. 9. If the traffic in liquors is to be carried on in connection with the business of keeping a hotel, the applicant shall also show by liis application that all the requirements of section thirty-one hereof, defining hotels, have been complied with. 10. When such applicant shall be a duly licensed pharmacist desiring to traffic in liquors as such, under subdivision three of section eleven of this act, he shall file with such county treasurer, or special deputy commissioner, in addition to the other statements required by this act, a verified statement also showing that said applicant is a licensed pharmacist in good standing, actually carry- ing on and doing business as a pharmacist on his own account at the place or store where he desires to so traffic in liquor, that the principal business which vsdll be transacted by said applicant in «aid place or store, during the period to be covered by the certifi- cate applied for, is the dispensing and retailing of drugs and medi- cines, that said applicant has not, during the year last past, allowed any liquor so sold on said place or store to be drunk therein, or ■otherwise violated any of the provisions of this act. Every corpo- Tation, association, copartnership or person liable for a tax under subdivision four of section eleven of this act shall^.on or before the first day of May of each year, or if now holding a license from the comptroller of the state, then on or before the termination of such license, prepare and make upon a blank, which shall be furnished by the state commissioner of excise, such statements in regard to carrying on such traffic as the commissioner may require, including the statements required under clauses one, two and five of this section. 11. Upon receiving such statement, the same shall be filed in the office of such county treasurer or special deputy commissioner of excise, who shall endorse thereon the date of the receipt of the same, the amount of tax paid by or on behalf of said applicant, the 42 Liquor Tax Law. [§ 17J date of the issuing of the liquor tax certificate thereon, the num- ber of the same, the premises where such business is to be carried on, and under which subdivision of section eleven said certificate is issued. Said endorsement shall be signed by the said county treasurer or special deputy commissioner of excise, and such endorsement shall be received in evidence in all courts of this state and shall be competent and sufficient prima facie evidence of all the facts stated therein. Thus amended, L. 18»7, chap. 312, and L. 1900, chap. 367. APPLICATION FOR AND PHOCXTREMIENT OP XIQTJOR TAX CERTXFICATES. Certificate absolutely necessary.— Before the traffic in liquor becomes lawful under this act, a liquor tax certificate authorizing such traffic must be obtained and posted pursuant to § 21, the payment of the excise taxes assessed upon such traffic of itself affording no protection.. Sealxo V. Saekett, 30 Misc. 543. Issued upon legal demand. — The procurement of such certificate depends not upon the favorable exercise of any officer's discretion, but upon- the applicant's prima facie legal right to traffic in liquors as evidenced pursuant to this section. Every holder of a liquor tax certificate, who desires to traffic in liquor lafter thef expiration of the same, which, occurs on the 30th day of April of each year, and every person who desires to become lawfully engaged in such traffic, must, before con- tinuing or commencing the same, prepare and file with the proper officer a verified application statement pursuant to this section. If the application is correct in form and does not show on the face thereof that the applicant is prohibited from trafficking In liquor under the subdivision of § 11, under which he applies, nor at the place where the traffic is to be carried on, a liquor tax certificate must be issued thereon pursuant to § 19. People eco rel. Belden Club V. Billiard, 28 App. Div. 140, affirming 50 N. Y. Supp. 909; Matter of Fall V. Meehan, 26 Misc. 611, affirmed (without opinion) 39 App. Div, 671; People ex rel. Hartigan v. Macy, unreported decision of *Ijongley, Columbia Co. J.; Matter of Lyman v. True Friends Social and Literary Circle, N. Y. L. J., Dec. 8, 1897; People eie rel. Hickok v. Coonley, un- reported decision of *Andrews, J. S. C. Such certificate is issued upon the applicant's representations that the statements made in such application are true. Matter of Bridge * Opinion on file in Department of Excise. [§ 17] Liquor Tax Law. 43 V. Mohrmann, 36 App. Dlv. 533, affirming 25 Misc. 213; People ex rel. Laiwton v. Lyman, 33 Misc. 243. S>espoiisibilit7 rests upon applicant. — The applicant makes such state- ments under the responsibilities and subject to the penalties imposed by the statute for making false representations or for carrying on unlawful business under cover of an issued certificate. People ex rel. Belden CVub v. HilKard, 28 Apip. Div. 140, affirming 50 N. Y. Supp. 909. Compliance with statute, not the certificate, makes traffic lawful. — If the statements are false and the applicant was not entitled to traffic in liquor as specified in the application, the Issuance of a certificate does not make the traffic in liquor thereunder lawful or confer any rights under the statute upon the holder. The right to traffic in liquor depends not upon the mere holding of a liquor tax certificate but upon compliance with all of the requirements of the statute. Niles v. Mathusa, 16a N. Y. 546, affirming 20 App. Div. 483, affirming 19 Misc. 96; Lyman v. SeJiermerlwrn, 53 App. Div. 32, affirmed 16^ N. Y. 113; Lyman v. Kane, 57 App. Div. 549; People ex rel. Lawton v. Lyman, 33: Misc. 243; People ex rel. Ochs v. Hilliard, 81 App. Div. 71. Penalties for making false statement. — The making of a material false- statement is of Itself a crime punishable under sub. 2 of § 34.- People em rel. Lawton v. Lyman, 33 Misc. 243. As a further, but civil penalty, the liquor tax certificate Issued upon the application containing such false statement may be revoked and cancelled in a proceeding Instituted under sub. 2 of § 28. When the- untruthfulness of a material statement has been established in such a proceeding, it is the duty of the court or justice, before whom the same is pending, to revoke the certificate. Matter of Lyman v. Erie County Athletic Club, 46 App. Div. 387, affirmed 163 N. Y. 552; Matter of Barnard v. Rivers, 48 App. Div. 423; Matter of Easquin v. Hennin, 37 Misc. 6931; Matter of Ryon v. Auchmoody, 39 Misc. 698, affirmed ,85 App. Div. — . Palse statement irrevocable. — ^An applicant for a liquor tax certificate under sub. 1 of § 11 is bound by the statements in his application as to whether his business is that of trafficking in liquor as a hotel keeper or otherwise. Matter of GulUnan v. Campbell, 39 Misc. 646; Matter of Barnard v. Rivers, 48 App. Div. 423; GulUnan v. 8tei7i, 84 App. Div. 202; Matter of Ryon v. Auchmoody, 85 App. Div. — , affirming 39 Misc. 698. Compliance -with statute after procuring certificate no protection. — If an applicant's statements are false when made and at the time the- certificate is. issued, he Is bound by them and the subsequent com- 44 LiQBOR Tax Law. [§ 17] pliance with the statute does not relieve him from the penalties to which he originally subjected himself. Matter of Bridge v. Mohrmaim, 36 App. Div. 533, affirming 25 Misc. 213; Matter of Lord v. Coughlin, 32 Misc. 223; Matter of Lyman v. Murphy, 33 Misc. 349; Matter of Bar- nard V. Rivers, 48 App. Div. 423. But see Matter of Purdy v. DriscoU, 40 App. Div. 183, and Matter of Saunders v. Oamsey, unreported de- cision of *Nash, J. S. C. affirmed (without opinion) 61 App. Div. 612. 'Good faith not equivalent to compliance with, statute. — ^The statute being such that any applicant can legally demand a certificate upon making statements showing that he is entitled to traffic in liquor, and the validity of the certificate being dependent upon the truthful- ness of such statements, good faith in making a material false state- ment will not gain for him that which is contrary to the statute. Matter of Fall v. Meehan, 26 Misc. 611, affirmed (without opinion) 39 App. Div. 671; Matter of Harper v. Keller, 30 Misc. 663; Matter of Lyman V. Murphy, 33 Misc. 349; Matter of Brewster v. Eillman, 85 App. Div. 235, reversing 39 Misc. 689. Jfflanipulation of circtuastances to obtain or preclude rigtt to traffic. — To put business signs on buildings occupied as dwellings will not serve to deprive these places of their privileged character as such or make their owners' consents unnecessary. Matter of Basquin v. Hennin, 37 Misc. 693. To place or construct fake dwellings within the prescribed limit of a proposed place of traffic, will not require an applicant to obtain their owners' consents. Matter of Vail v. Lennon, 38 Misc. 392. Nor if such consents arie given, be available to an applicant to the prejudice of any bona fide dwelling owner. Matter of MoVicJcer v. Mley, 21 Misc. 383; Matter of Lyman v. Garrison, 24 Misc. 552. A dwelling brought within the prescribed limits of a proposed place of traffic by the construction of a new entrance, after an application statement is presented but before any certificate is issued, will not be taken into account. Matter of Cheney v. Muckey, 35 Misc. 598. On the other hand the mere closing and slight fastening of doors will not efCectually destroy them as entrances within the meaning of the statute. Matter of Johnson v. Fogarty, unreported decision of * Werner, J. S. C; Matter of Ball v. Olmstead, unreported decision of ♦Stover, J. S. C, affirmed (without opinion) 84 App. Div. 635; but see Matter of Purdy v. Driscoll, 40 App. Div. 133. To detach a portion of a building for which a certificate was un- doubtedly issued and claim that traffic is to be carried on therein and measurements should be made therefrom in determining whether the required consents were obtained will not avoid the penalties of •Opinion on file In Department of Kxclse. [§ l"^] Liquor Tax Law. 4^ the statute for making a false statement. Matter of Flanagan r.. Harris, 49 App. Dlv. 99. To establish a fake church near a proposed place of traffic will not be efCective in its purpose. Matter of Tail v. Lennon, 38 Misc. 392;. Matter of Cruikshank v. Hesterberg, unreported decision of *Graynor, J. S. C, affirmed (-without opinion) 82 App. Div. 645. A tenant of saloon premises who a few days before the expiration, of his lease suspends traffic for the purpose of depriving the place of its privileged character under sub. 8 of § 17, does not accomplish, its abandonment. Matter of Hawkins v. Thiel Bros., 165 N. Y. 188. DiWULLING OWNEKS' CONSENTS. Purpose of requirement. — The aim of the Liquor Tax Law is not only to- forbid traffic in liquor within 200 feet of a church or schoolhouse (I 24)- similarly to previous excise laws, but also to restrain such traffic in residential districts and in a measure protect dwelling-houses from surroundings dangerous to good morals and tending to disturb the peace and quiet of the neighborhood, by requiring that, with certain specified exceptions, the consents of the owners of at least two-thirds- of the total number of buildings used exclusively as dwellings, the nearest entrance to which is within 200 feet measured in a straight line of the nearest entrance to the premises where the traffic in liquors is to be carried on, shall be obtained and filed by every appli- cant for a liquor tax certificate (§ 17, sub. 8). Matter of Kessler v., Cashin, 28 Misc. 836, affirmed 44 App. Div. 635, reversed 163 N. Y. 205; People ex rel. Sweeney v. Lammerts, 18 Misc. 343, affirmed (without opinion) 14 App. Div. 628; Matter of Yeeder v. Miller, 31 Misc. 569; Matter of Haight v. Parsell, 33 Misc. 544, affirmed 59 App. Dlv. 626;. Matter of Adriance v. Ramage, 59 App. Div. 440; Matter of Saunderson V. Crane, 34 Misc. 375; Matter of Wicker v. Underhill, 17 Misc. 19. Purpose of exceptions. — ^The undoubted purpose of the exceptions was to- protect in a measure the interests of those persons already estab- lished in the business of selling liquors or of keeping a hotel when, the Liquor Tax Law took effect, and to relieve them, so far as pos- sible, from the hardships which a uniform compliance with the new and unusual provisions of this section would have occasioned. Matter- of Haight v. Parsell, 33 Misc. 544, affirmed 50 App. Div. 626; Matter- of Loper v. Slattery, 53 App. Div. 576, affirmed 165 N. Y. 618. How construed. — The provisions of this section should not be construed harshly as against the holder of a certificate or interpreted so loosely •Opinion on file In Department of Excise. 46 Liquor Tax Law. [§ 17]' as to emasculate its restrictive provisions and breali down the pro- tection whicli it gives to dwelling owners. Matter of Lyman y. Gar- rison, 24 Misc. 552. But there is no "reason why a liberal construction should be given to the restrictive provisions of this act." People ex rel. Sweeney v. Lammerts, 18 Misc. 343, affirmed (without opinion) 14 App. Div. 628. Sxoeption favoring places occupied for trafllo on ULaxch. 23, 1896. — The first exception favors places which were actually lawfully occupied for traffic In liquors on March 23, 1896. The privilege has not been limited to the person then conducting such traffic, but like a similar exception contained in § 24, has been considered as applicable to the place so that a change of proprietorship merely does not work a for- feiture. People ex rel. Sweeney v. Lammerts, 18 Misc. 343, affirmed (without opinion) 14 App. Div. 628. Matter of Kessler v. Cashin, 163 N. Y. 205, reversing 44 App. Div. 635, affirming 28 Misc. 336. "Waived if trafB.c is abandoned. — ^The retention of the privileged char- acter of any such place depends ujpon the manner in which it has been used since the law went into effect. The suspension of the liquor traffic does not necessarily deprive a place of its privileged character under the statute, " provided the business is resumed at the first reasonable opportunity." Matter of Kessler v. Cashin, 163 N. Y. 205, reversing 44 App. Div. 635, affirming 28 Misc. 336; Matter of Loper v. Slattery, 165 N. Y. 618, affirming 63 App. Div. 576; Matter of Eawkins V. Thiel Brotliers, 165 N. Y. 188w But as the Court of Apx>eals held in the last-mentioned proceeding, the privilege in question may be lost because it is "not attached to the property in perpetuity and is not a thing that necessarily and under all circumstances runs with the land. It may be lost by aban- donment or nonuser when the facts and circumstances are such as to justify the conclusion that the owner intended to discontinue the liquor traffic at the place. When that intention is clearly established, the period of time during which the place is vacant or used for other purposes is not very material." This construction of the statute was talien in People ex rel. Sweeney v. Lammerts, 18 Misc. 343, affirmed (without opinion) 14 App. Div. 628; Matter of Bridge v. MoTirrmmn, 3i6 App. Div. 533, affirming 25 Misc. 213. But see Matter of KlevesaM v. Perry, 30 Misc. 361, where it was held that the suspension of traffic by reason of the result of a vote upon the local option questions by the electors of any town destroyed the privilege of obtaining a liquor tax certificate and trafficking in liquor in said town without the con- sents of two-thirds of the owners of dwellings within 200 feet of premises where such traffic had been previously conducted free from the requirements of this section. "The statute which conferred the I§ 17] Liquor Tax Law. 47 privilege, conferred on the electors the right to destroy the privilege," which is not revived by a subsequent vote of the electors permitting trafl5c in licjuor in said town. See also People ex rel. Sandman v. Brush, 41 Misc. 56, where the con- trary was held in relation to the effect of a negative local option vote. Uxoeption favoring places occupied as hotels on March 23, 1896. — The second exception favors hotels in existence March 23, 1896, regardless of their use for the traffic in liquors. In determining what hotels are benefited by the provisions of this exception, it has been held that " it was a hotel in contemplation .of the Liquor Tax Law if it was kept open for entertaining strangers or travelers." Matter of Moulton T. Acooncia, 59 App. I>iv. ^, affirmed 168 N. Y. 643. Or, if " regularly ■used and kept open for the feeding and lodging of guests," and there -were the statutory number of furnished bedrooms for their occupancy therein. Matter of Brewster v. Billman, 85 App. Div. 235, reversing 39 Misc. 689. This exception did not apply to a mere boarding house. Matter of Ha/rper v. Keller, 30 Misc. 663. Nor a saloon. Matter of Place v. Matty, 27 App. Div. 561, affirmed (without opinion) 156 N. Y. 691. Nor to a building adjoining a hotel, subsequently annexed to it. Matter of Haight v. Parsell, 33 Misc. 544, affirmed 59 App. Div. 626. "Waived if hotel business is abandioned. — In Matter of Pierson v. Reigel, 32 Misc. 293, the Court says: " It would seem that so long as a hotel in existence at the time of the passage of the act is maintained as a hotel, the owner can obtain a liquor tax certificate without the con- sents of owners of dwellings, even though traffic in liquors is not carried on thereat at the time of the passage of the act or for an indefinite period thereafter. Nor is there anything in the act to indi- cate that a. suspension of the traffic thereafter would work a forfeiture of the exception so long as the premises are maintained as hotel premises. It is its character as a hotel that brings the exception, not the traffic. It must be admitted that if the premises are once aban- doned as a hotel and they lose their character as hotel premises, then they would lose the benefit of the exception." Thus, it was held in this case thai the destruction of a hotel by fire did not destroy the statutory privilege which remained for the premises as rebuilt within a reasonable time. Similarly, in Matter of Moulton v. Acconoia, 59 App. Div. 25, affirmed 168 N. Y. 645, this hotel privilege was retained during a brief period of vacancy following the dispossession of a tenant for non-payment of rent, but the Court says: " There is no doubt that if the owner of ■the premises here involved had abandoned it as a hotel and had put 48 LiQDOB Tax Law. [§ 17J in a stock of groceries or a grist mill it -would so far have lost Its chamcter as a hotel as to come within the general rule laid down by the statute." If a hotel keeper devotes such a portion of his hotel building to other purposes that the required number of bedrooms are not reserved for guests, he will be charged with deliberately abandoning the privilege he might otherwise claim for the place. Matter of Brewster r. Hillman,. 85 App. Div. 235, reversing 39 Misc. 689. Intention to abandon this hotel privilege is suflBciently manifested if the owner attaches his consent to a tenant's application for a certifi- cate in which it appears that, instead of the hotel business, a lunch or restaurant business only is to be carried on in connection with the sale of liquors. Matter of Ireland v. Messer, unreported decision of •Almy, Tompkins C!o. J. Bxception favoring' place for whioh. unlimited consents have been, obtained. — The third exception was intended to relieve persons traf- ficking in liquor at places for which dwelling owners' consents were- required from obtaining a renewal of such consents annually. Matter of Gowles V. Bergin, 34 Misc. 447. It was not contained in the original statute but was provided by amendment I/. 1897, chap. 312. The amendment had no retroactive force. Matter of McVicker v. Bilev, 21 Misc. 383. The failure to state a term for which a consent is given, imports. ' a consent for an unlimited term. Matter of Van Tleck v. Ooonan, N> Y. L. J., March 27, 1900. The traffic in liquors for which unlimited consents are given must be " continuously " carried on as expressly required by the statute. Matter of Hawkins v. TJdel Brothers, 165 N. Y. 188; Matter of Moulton v. Acooncia, 59 App. Div. 25, affirmed 168 N. Y. 645. Revocation of consetute. — It has been held that a dwelling owner may revoke the consent provided for by this section at any tinxe before it has been filed with, presented to or in any maimer acted upon by the certificate issuing officer, if such consent was given -without considera- tion. Matter of Adriance v. Ramage, 59 App. Div. 440. But a county treasurer has no discretion in the exercise ot which he can refuse to act upon the written consent of landlord or dwelling owner. If it has been duly revoked, the certificate can be cancelled- People ex rel. Hickok v. Coonley, unreported decision of ♦Andrews,, J. S. O. The death of a dwelling owner revokes any consent he may have given if it has not been presented to or acted upon by the certificate •Opinion on file In Department of Excise. [§ '^'^1 Liquor Tax Law. 49 IssuiDg officer. Matter of Ireland v. Messer, unreported decision of *Almy, Tompkins Co. J. When to be filed. — Whenever dwelling ownersi" consents are required by this section, they should be filed simultaneously with the application statement for the liquor tax certificate under which the traffic affected by such consents Is to be carried on. The statements required to be made relative thereto are, under this section, as amended by L. 1900, chap. 367, material statements by which both applicant and the certifi- cate issuing officer are strictly bound. " It has been held that In the matter of procuring and filing consents the question of the good faith of the applicant for a liquor tax certifi- cate is not involved; that the law requires a certain number of con- sents; that he must procure and file the same at his peril, and if he does not do so, the fact that he acted In good faith is no defence or protection. It has also been held that the requisite number of consents must be filed at the time the application for the certificate Is made, and that, if they are not procured and filed at that time, consents subsequently made cannot be considered upon an application to revoke the liquor tax certificate." Matter of Lyman v. Murphy, 33 Misc. 349; Matter of Bridge v. Moltrmarm, 36 App. Dlv. 533, affirming 25 Misc. 213. " No right is reserved to a court to order the filing of consents thereafter." Matter of Lord v. Goughlin, 32 Misc. 223. An applicant who refers to and relies upon consents previously filed by him, which are insufficient, assumes the eame risk as though such consents were being filed for the first time. Matter of Lyman v. Clancy, 84 Misc. 296; Matter of Tonatio v. Deperino, 49 App. Div. 84. By whom executed. — These consents must be executed by the person or persons holding the legal title to the dwelling or dwellings, or by their duly authorized agents; the consent of a lessee or tenant is insufficient^ Matter of Sherry v. Tan Ausdall, 25 Misc. 361. The consent of an agent who was only authorized to rent a place, collect the rents and make repairs. Is Insufficient Matter of Lymwi v. Murphy, 33 Misc. 349. BT}TIJ)INa VSBS EXCLXTSIVKLY AS A BWELUITO. Preponderating use controls. — The courts have so interpreted this phrase as to afford the best protection possible to the owners of private dwellings from the encroachment of the evils associated with and surrounding a place where the traffic in liquors is carried on. 'Opinion on file In Department of Excise. 4 50 Liquor Tax Law. [§ 17] A building comprised of a physician's private residence and public office was held not to be protected by the statute for the reason that " where a portion of a building is used for the purpose of a general business or the general practice of a profession to which the public Is invited, it cannot be said to be used exclusively for residential pur- poses. * * * The using of a portion of a building as an office for the general practice of a profession, would be quite as much an inter- ference with the use of a building for residential purposes as a setting apart of the same space for the carrying on of any mercantile or other business. The public is invited to the room not for the purpose of mere social Intercourse, but for the purpose of availing itself of pro- fessional advice and treatment. * * * while it may be said that the evil to the family is just as great as though the building were occupied exclusively as a residence, yet with this the court can have nothing to do." Matter of Russell v. Noonan, unreported decision of »Stover, J. B. 0. A building used exclusively as a dwelling " means a building, all of which, considered as a whole, in its general and preponderating use, is designed for and devoted to occupation as a dwelling, as a dwelling of its Idnd would be ordinarily used and to the exclusion of any distinct portion thereof being openly and habitually devoted to some other purpose, as that of business. * * * It could not have been the intention of the Legislature that a person's dwelling house should 'ose the benefit of this provision, l)eeause occasionally or even habitu- ally the occupant, as a lawyer, devoted a room Intended and used as his private library to working upon his cases, or as a washerwoman (this case) devoted the room intended and used for her kitchen to doing some of her washing." Matter of Lyman v. Baldwin, 26 Misc. 568. lYom the mere fact that a business sign was temporarily upon a dwelling, it will not be inferred that a business was being carried on there. Matter of Rasquin v. Hennin, 37 Misc. 693. A building, occupied by a person who is a dressmaker by trade and does more or less sewing in the house but has no sign out, Is a build- ing used exclusively as a dwelling, and the same Is true of a new vacant building constructed and meant for such exclusive occupation, and likevrise true of a private boarding house. Matter of Ruland v. Considine, 21 Misc. 5,04. In Matter of Veeder v. Miller, 31 Misc. 569, it was held that the letting of furnished rooms by the week to persons who might apply for them, was not the carrying on of a business within the meaning of the statute such as to deprive a house of Its character as a dwelling, because it did not become " a place where the general public would be invited to enter and transact business, but for every intent would still be a private house, and its occupants entitled to the privacy which surrounds a dwelling house." 'Opinion on file In Department of Excise. [§ 17] Liquor Tax Law. 51 A dwelling, which is a rendezvous of men and women of question- able reputation and has been used as a public resort, Is not a building used exclusively as a dwelling. Matter of Hyde v. McAllister, unre- ported decision of *Woodward, J. S. C. The condition and occupancy of buildings at the time when appli- cation for a certificate is made should control in determining whether any false statement has been made as to the number of dwellings within the prescribed limit of the place of trafiic. 'Matter of Feist v. Locke, N. Y. L. J., April 6, 1900. With respect to a building, the ground floor of which was designed for and usually occupied as a store but temporarily vacant, with the upper floor adapted for residence purposes it was said in Matter of Johnson v. Eogarty, unreported decision of *Werner, J. S. C, that " in a strictly literal sense the building was at the time, occupied exclu- sively as a dwelling. But this language should not be given its nar- rowest and most technical interpretation. * * * This provision of the statute must therefore be held to refer not to the momentary use to which any building within said prescribed distance of two hundred feet may be put; but to its general use, adaptation and construction. A building containing a number of stores, may upon a given day, have a single occupant who uses a room for a dwelling; such an 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 purposes for which it is used. This building was designed for and usually used as a store and dwelling, and was, therefore, not occupied exclusively as a dwelling." A dwelling undergoing extensive repairs should not be considered otherwise on account of slight proof as to its future occupancy for hotel purposes in the absence of an overt act on the part of its owner or occupant to this end. Matter of Aldous v. Ooodwin, unreported de- cision of *Russell, J. S. C. Connected buildings. — A division of what would be ordinarily known as a block of several buildings, which has no inside communication with other divisions of the block and which of itself is and has been used exclusively as a flat for dwelling purposes, should be treated as a separate and distinct building and the use of other divisions of the block for business purposes does not deprive it of its privileged char- acter. Matter of Lymart v. Baldwin, 26 Misc. 568. Sham dwellings. — The construction of sham dwellings to be used as such only at the time when application is made for a liquor tax certificate, will avail neither to gain or preclude the right to traffic. * Opinion on file in Department of Excise. 52 Liquor Tax Law. [§ 17] Matter of Vail v. Lenmn, 38 Misc. 392; Matter of McVicker v. Riley, 21 Misc. 388; Matter of Lyman v. Garrison, 24: Misc. 552. According to tlie decision last referred to "it is not the size or the material of which a building is constructed, but the purpose 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 liquor tax 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." Measurement of distances between dwellings and place of traffic in a straight line. — In ascertaining the distance between a place where the traffic in liquors is to be carried on and a dwelling in its vicinity, measurements should be taken in a straight line. Matter of Bridge V. Molirmann, 36 App. Div. 538, affirming 25 Misc. 213; Matter of Ruland v. Considine, 21 Misc. 504. As said in the case last men- tioned, "the actual length of a straight line stretched from one entrance to the other, regarded as running through all obstructions in the course, is the measurement required." From what points. — Measurements should be made from the entrance or opening in the wall of a saloon building rather than the location of the door set back from the wall in the entrance way. Matter of Lyman v. Garrison, 24 Misc. 552; Matter of Cheney v. Muokey, 35 Misc. 698. Ifearest entrance. — The phrase "nearest entrance" to a dwelling is the nearest entrance, whether rear, side or front, because, as stated in Matter of Teeder v. Miller, 31 Misc. 569, "a saloon in the rear of a dwelling might be as obnoxious as one in front." In another case it is held that " the use of the word ' entrance ' qualified by the words 'the nearest' plainly points to the meaning of more than one entrance to buildings used exclusively as dwellings. The fact that these dwellings have more than one entrance is not peculiar to them, but common to most dwelling houses. It is there- fore no strained interpretation to say that the law makers meant to include all entrances, front, side or rear, in the use of ' the nearest entrance.' If they had meant the front entrance only, It seems to me that they would have said so in plain words instead of using the language they did use, which is to be given its ordinary common- sense meaning." Matter of Saunderson v. Crane, 34 Misc. 375. The term " nearest entrance " was held to include rear and side entrances to a hotel regardless of the test as to their actual use. Matter of Johnson v. Fogarty, unreported decision of *Werner, J. S. C. * Opinion on file In Department of Excise. I§ 17] Liquor Tax Law. 53 In the case last mentioned, it was held that where doors were nailed up with ten-penny nails and their knobs removed, they were still entrances within the meaning of the statute, it being said that " any method of closing, entrances which can by slight effort and with- out general observation be changed would throw upon the authorities charged with the enforcement of this law the duty of constant sur- veillance 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 un- scrupulous men could devise." This view of such closed entrances is also held in Matter of Ball v. Olmstead, unreported decision of *Stover, J. S. C, affirmed (withouit opinion) 84 App. Dlv. 635. But see Matter of Purdy V. Driscoll, 40 App. Div. 133. The street entrance to a common hallway of a building rather than the door into a particular room or part of a building on the second floor thereof occupied for the traffic in liquors, is the nearest entrance to a certificate holder's premises. Matter of Wicker v. Vnderhill, 17 Misc. 19.. Where an applicant, proposing to traffic in liquor at a building more than two hundred feet distant from any dwellings, insufficiently de- scribed the same by giving the name of the park in which such build- ing was situate, portions of which park were within the prohibited dis- tance of certain dwellings, his statement was not considered false. Matter of Eeene v. Toole, unreported decision of *McLiennon, J. S. C. CONSENT OP LIQUOB, SHOEE OWNER. Bight to exception personal. — It has been held that the exception in sub. 6 of this section applies only to such tenants of liquor stores who were such on March 23, 1896. " 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 restric- tion." People ex rel. Reusse v. Miehell, unreported decision of *Dickey, J. S. O. * Opinion on file in Department of Excise. 54 Liquor Tax Law. [§ 18] Whether lease is contract to give consent. — The owner of premises rent- ing them for use as a liquor saloon cannot be required to give consent to an application for a liquor tax certificate by the lessee's husband. Outh V. Mehling, 84 App. Div. 586. A lease with an unfilled blank in a clause relating to the use of the demised premises Is not so ambiguous as to authorize the admission of parol evidence that when the lessee accepted the lease the lessor verbally promised to sign a consent to allow the premises to be used for the sale of intoxicating liquors. Nostrand v. Hughes, 54 App. Div. 602. Unlimited consent. — ^A consent given under subdivision 6 of § 17 is " neither a conveyance nor lease of real estate, nor a contract for a lease or sale of any interest therein," so that one of three joint owners of a saloon who leased the premises and consented that the lessee traffic in liquors did not require written authority from the others who recognized the lease. Furthermore, such consent being unlimited, the lessee was not required to obtain the consent of a purchaser who took the premises subject to the lease. Matter of Cowles v. Bergin, 34 Misc. 447. Consent of legal, not equitable, owner required. — A certificate holder in possession of property, of which he has a contract of sale, is not the owner of the same within the meaning of subdivision 6 of § 17, and he must obtain the consent of his vendor. Matter of Selig v. Buckley, unreported decision of *Garretson, J. S. C. § 18. Bonds to be given — Each person taxed under this act, shall^ at the time of making the application provided for in section seven- teen of this act, file in the office of the county treasurer of the county in vs^hich such traffic is to be carried on, or if in a county containing a city of the first class vrith the special deputy com- missioner for such county, or if the application be under subdi- vision four of section eleven of this act, with the state commis- sioner of excise, a bond to the people of the state of New York, in the penal sum of the amount plus one-half 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 five hun- dred dollars, conditioned that if the tax certificate applied for is given, the applicant or applicants will not, while the business for 'Opinion on Sle in Department of Excise. [§ 18] Liquor Tax Law. 55 wMch such tax certificate is given shall be carried on, suffer or permit any gambling to be done in the place designated by the tax certificate in which the traffic in liquors is to be carried on, or in any yard, booth, garden or any other place appertaining thereto or connected therewith, or suffer or permit such premises to become disorderly, and will not violate any of the provisions of the liquor tax law; and that all fines and penalties which shall accrue during the time the certificate applied for is held^ and any judgment or judgments recovered therefor, will be paid, together with all costs taxed or allowed. Such bond shall be executed by each such applicant, and if given by a corporation or association, by some person or persons duly authorized so to do as principal, and by at least two sureties, who shall be freeholders severally owning within this state real estate of the value of not less than the penalty of the bond and who shall be residents of the town or city in which the premises are where such trafiic is to be carried on, or instead of such sureties, by a corporation duly authorized to issue surety bonds by the laws of this state. The bond, if given by two sureties, shall have annexed thereto or indorsed thereon the affidavit of each surety that he is a freeholder and that he owns real estate situate in the state of New York of the value of not less than the penalty of the bond, the location of which shall be described in said affidavit, and if in a city or village the street and number given, and that he is worth double the penal sum named in such bond over and above his property exempt by law from levy and sale upon an execution and over and above his just debts and liabilities. The state commissioner of excise may at any time without previous prosecution or conviction for violation of any provision of the liquor tax law, or for the breach of any con- dition of said bond, 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 the breach of any condi- tion 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 accounted for in the same manner as are moneys collected under subdivision four 56 Liquor Tax Law. [§ 18] of section eleven of this act, but no recovery shall be had in any action commenced hereafter on any bond filed and approved by the certificate issuing ofiicer subsequent to April second, nineteen hun- dred and three, for more than the amount, plus one-half, of the tax for one year at the place for which the bond in suit was given, provided that no recovery on any such bond shall be for less than five hundred dollars. Thus amended U 1897, chap. 312; and L,. 1903, chap. 486. LIQUOK TAX BONDS. Tona of bond. — SectlO'n 15 provides that the State Commissioner of Excise shall prepare and furnish the blank bonds required by this section. The form of the first bonds furnished by the State Commissioner of Bxclse was held to substantially follow the language of the statute. Lyman v. Schemk, 37 App. Dlv. 234. The amendment of this section by L. 1897, chap. 312, necessitated a change In the form of bond which as thus modified has since been required of all applicants for liquor tax certificates, and held to conform^ substantially to the form prescribed by statute. Lyman v. Brucker, 26 Misc. 594, affirmed (without opinion) 42 App. Dlv. 624; Lyman v. Kurtz, 166 N. Y. 274; Lyman v. Perlmutter, 166 N. Y. 410, affirming 49 App. Dlv. 630. The delivery of an unattested bond by a clerk in charge of the business of an agent for an indemnity company is a waiver of its written condition that it shall be valid only -wlien attested by the agent, especially where the latter promised to and subsequently did attest it. CulUnan v. Bowker, 40 Misc. 439. Extent of liability. — The conditions of a liquor tax bond aire such that liability thereunder is twofold. The bond secures the payment of any fine or penalty imposed on the principal, but is not limited to its collateral quality if the State Commissioner of Excise shall think fit to bring an action to recover its entire penal sum and thus subject an offender, as well as a surety, to the greater punishment even for a singJe offense. Lyman v. Perlmutter, 166 N. Y. 410, affirming 49 App. Div. 630; Lyman v. Sohenck, 37 App. Div. 234; Lyman v. Shenandoah Social Club, 39 App. Div. 459. In Lyman v. Perlmutter, 166 N. Y. 410, the Court of Appeals says: "It is common knowledge that the temptation to violate this and previous excise laws has developed a fertility and variety of abuses, evasions and violations that in default of rigorous treatment weaken the efficiency of the law both as a revenue measure and as a regulator of the liquor traffic. Recourse to the penalty named in the bond. C§ 18] Liquor Tax Law. 57 Instead of liie fine or penalty named in any section of the act for a specific violation, was no doubt thought to be necessary In order to secure observance of the provisions of the act. If the surety thereby suffers and the offender sometimes escapes, the public may benefit by inducing the surety to become more watchful of the character of the vendor for whose fidelity he engages, and thus violations will be lessened by making it more difBcult for lawless men to obtain their bonds, and when they obtain them to make them mor-e circumspect in regard to th« obligations they have assumed. Such, we think, is one of the purposes of the section providing for this bond, and the recov- ery is within its letter and spirit." I^uration of liability. — " When a liquor tax certificate has been issued or transferred to a i>erson upon hts application and filing of a bond, he Is the principal whom the law will look to during the conduct of the business and will hold responsible for compliance with the statu- tory provisfone." Whether he is caiTying on business on his own account or for another is of no importance upon the question of lia- bility. Lyman v. Kurtz, 166 N. Y. 274. Liability under a bond, ui)on which a liquor tax certificate was Issued in the name of a corporation, cannot be evaded by showing that the certificate holder Is a mere fake club conducted by an indi- Tldual, who was the only person interested in the business of traffick- ing In liquors under the certificate. Lyman v. Ch'amsrey Clul>, S9 App. Diy. 661. " The intention of providing a bond is clearly to prevent the prem- ises, during the period that the certificate is in force, from being used for an illegal purpose; and that object would be rendered nugatory if the parties to It could escape liability upon proof that the principal on the bond, who had assumed the responsibility of preventing the place from being used for illegal purposes, could withdraw from active participation in the business, leaving his transferees or subordinates to maintain the place in violation of the law, under the certificate obtained by the execution of the bond. I think that the obligation assumed by the principal and surety is that as long as liquors are sold under the authority of the certificate, the principal shall see to it that the premises upon which the liquors are sold, are not used for illegal purposes." Cullman v. Parker, 84 App. Div. 296, affirming 39 Misc. 446. The surrender of a liquor tax certificate for rebate terminiates lia- bility for the future conduct of the premises for which it was origin- ally issued. Lyman v. Cheever, 168 N. Y. 43, reversing 52 App. Diy. 635, affirming 31 Misc. 100. The Court of Appeals says, in deciding the case last mentioned, " The object and purpose of the bond, we think, is made quite appar- ent by the provisions of this statute. The surety thereto becomes 58 LiQUOE Tax Law. '[§18] obligated to see that the premises do not become disorderly and that no gambling is carried on therein, and that the Liquor Tax Law shall not be violated during the time in which the business shall be carried on under the certificate." When a liquor tax certificate expires by Its own limitations, liability under the bond filed upon its issuance also terminates so far as secur- ing the good conduct of the premises to which both certificate and bond relate, but liability for past breaches of its conditions continues until the statute of limitations has run against it. Though upon proof that no condition of the bond has been broken, the principal may recover from his surety property given by way of Indemnity under a special contract. Shea v. Fidelity and Casualty Co., 83 App. Div. 305, reversing 39 Misc. 107. Bond conditioned against disorderly premises. — The purpose of the bond is " to secure, on the part of the principal, not only observance of the Liquor Taoc Law and its special mandates but also good behavior in other particulars essential to the orderly and proper conduct of the business." Lyman v. Stienandoah Social Club, 39 App. Div. 459. The condition of the obligation is not that the principal, the certifi- cate holder, will not maintain a disorderly house upon the premises, but that the principal will not " sufiCer or permit such premises to become disorderly." CulUnan v. Parker, 84 App. Div. 296, affirming 39 Misc. 446. " Such premises " relate to the premises upon which the principal is authorized, by the payment of a tax, to carry on the business of traflicking in liquors and " such premises " are specified in the appli- cation. CulUnan v. Stein, 84 App. Div. 292. But, neither principal nor surety can escape liability merely because of their mistake in describing the location of the premises actually occupied for the traflBc in liquors. CulUnan v. Bowers, 41 Misc. 119. Bond conditioned against any gambling. — "What is required of the principal is, not that he vsrill respect the Penal Code alone, but that he will not suffer 'any gambling' in the premises. The place where liquor is sold was not deemed by the Legislature a suitable locality for gambling in any form * • * * The people sustain no direct pecuniary injury from a game of cards for money between private individuals in a liquor saloon, and yet just such an act was one of those which the bond was designed to prohibit." Lyman Vw Shenandoah Social Club, 39 App. Div. 459. Gambling ui)on a slot machine, maintained in a place for which a liquor tax certificate has been issued, is in breach of the conditions- of the bond filed with the application for such certificate and the obligors of the bond are liable for its full penalty. Lyman v. Brucker, 26 Misc. 594, afllrmed (without opinion) 42 App. Div. 624; Lyman v. Kurtu, 166 N. Y. 274. A surety compelled to pay the penalty of a forfeited bond may recover damages from a brewing company which was the undisclosed principal of the certificate holder, owning the business conducted [§ 18] LiQuoE Tax Law. 5» under the certificate and the slot machine unlawfully maintained on the premises for which it was issued. City Trust S. D. & 8. Co. v. American Brewing Co., 174 N. Y. 486. In Lyman v. Kurtz, 166 N. Y. 274, the Court of Appeals says: "The mechanism of this machine is such that when a five-cent piece is- dropped Into one of the several slots representing several colors a disk is made to revolve on which are painted corresponding colors, and when it ceases to revolve the color upon its face opposite to a finger determines whether the player has won or lost. Each color has a different value from ten cents up to one dollar, and if the player has won upon the color selected, the sum won is, by a mechanical device, delivered to him in a cup. The evidence shows the machine to be a contrivance or apparatus by which it is determined who, as betweeir the player and proprietor, is the winner or loser of the money hazarded. The player stalies or hazards his money on a chance and that is suflBcient to make out the gambling. Within the general understanding such a machine is a gambling device." Bond conditioned against unlawful traffic on Sunday. — If liquor is wrongfully and unlawfully sold at licensed premises on Sunday, the full penalty of the liquor tax bond, given to secure the good conduct of such premises, may be recovered on account of such breach of its conditions. Lyman v. Schenck,'37 App. Div. 234; Lyman v. 8hena/n- doah Social Club, 39 App. Div. 459; Lyman v. Perlmutter, 166 N. Y. 410, affirming 49 App. Div. 630. Bond conditioned against traffic between one and five a. m. — If liquor is wrongfully and unlawfully sold at licensed premises between one and five o'clock in the morning, the full penalty of the liquor tax bond, given to secure the good conduct of such premises, may be recovered on account of such breach of its conditions. Lyman v. Oussani, 33 Misc. 409, reversed 65 App. Div. 27; CulUnan v. Criterion Club, 39 Misc. 270, affirmed (without opinion) 86 App. Div. — . Bond not conditioned against fraudulent application for certificate. — The surety on a liquor tax bond does not guarantee the statement of an applicant for a liquor tax certificate that he has not been con- victed of a felony. Lyman v. Schermerhorn, 167 N. Y. 113, affirming 53 App. Div. 32. Neither does the surety guarantee the truthfulness of an applicant's statement that he has filed the consents of dwelling owners, required by the statute. Lyman v. Kane, 57 App. Div. 549. Neither does a surety guarantee the truthfulness of an applicant's statement that he was actually lawfully trafficking in liquors within two hundred feet of a church on March 23, 1896. Lyman v. Mead, 56 App. Div. 582. State Commissioner of Excise authorized to sue forfeited bonds. — The State Commissioner of Excise having been expressly designated in the statute as the officer to bring actions under § 18 of the Liquor '60 Liquor Tax Law. [§ 18] Tax Law, he is the proper plaintiff in an action to recover the penalty of a liquor tax bond. Lyman v. Schenck, 37 App. Div. 234; Lymm v. Shenandoah Social Club, 39 App. Div. 450. HonA. actions, where brought and maintained. — The inherent power of the Supreme Court to regulate the venue of actions is not infringed by the provisions of this section allowing the State Commissioner of Excise "to commence and maintain" an action in any court of record in any county of the State to recover the penalty of a liquor tax bond. Lyman v. Oramercy Club, 28 App. Div. 30. ■Coriplain.t. — If an action on a bond given under this section be one to recover from the surety only fines or penalties imposed on the prin- cipal, the complaint should specifically set forth that the violations of the Ljquor Tax Law, on account of which such fines or penalties were iml)osed, occurred while the business for which the liquor tax certificate issued upon the filing of said bond was carried on. Lyman V. Siebert, 30. Misc. 285. A right of action Inures upon the breach of any one of the con- ditions of the bond, but the cause of action is the same upon the breach of all the conditions so that a number of specific breaches of the various conditions of the bond may be averred in a complaint without being ' separately stated and numibered as separate causes of action. Lyman v. Broadway Garden Hotel and Cafe Co., 33 App. Div. 130; Lyman v. Shenandoah Social Club, 39 App. Div. 459; Lyman v. Gramercy Club, 28 App. Div. 30. i In alleging violations of clauses " a," " b," " c " or " d " of § 31, which prohibit the sale of liquor on Sunday and at certain other times, it is unnecessary to negative the exceptions contained in the latter part of that section favoring certain hotel keepers, pharmacists and social clubs. Individuals claiming the benefit of such exceptions must plead and prove their right to enjoy them. GuUinan v. Trolley Club, 65 App. Div. 202; CulUnan v. Criterion Club, 39 Misc. 270, affirmed (without opinion) 86 App. Div. — . An averment that on account of the breaches of the conditions of the bond previously set forth in a complaint the defendants are therefore indebted unto the People of the State of New York in the sum demanded in the prayer for relief is sufficient allegation of non- payment of the penalty of the bond. Cullinan v. Bowers, 41 Misc. 119. Sufficiency of proof. — An action brought under this section is not a crim- inal action either in form or substance, but simply a civil action upon a contract. Lyman v. Shenandoah Social Club, 39 App. Div. 459. An acquittal of the defendant principal in a criminal prosecution does not affect the right of the State Commissioner of Excise to sue the principal and his surety for the penalty of his liquor tax bond. An action brought for that purpose is a civil action with a different rule as to proof, a preponderance of evidence being sufficient, where- as in a criminal proceeding, a, cause of action must be established beyond a reasonable doubt. Cullinan v. Hermann, N. Y. L. J., Nov. 29, 1901. [§ 18] Liquor Tax Law. 61 The evidence of special agents submitted on behalf of the State is^ not that of persons hired to obtain evidence. "They were In no sense hired to obtain evidence, nor does such duty devolve upon them, nor- are they In any sense detectives » ♦ * There is a marked dis- tinction between a public officer charged with the duty of seeing that the laws are enforced and vested with power and authority to inves- tigate violations of the law, and a private detective hired to procure evidence of the violation of law at the instance and for the benefit of private persons. * * * Undoubtedly the credibility of these witnesses was a question for the jury in like manner as other wit- nesses, but they were not subject to the scrutiny which attaches to- the testimony given by private detectives." •Gullinan v. Trolley Club, 65 App. Dlv. 202. Where, as the result of investigations by special agents under the- dlrectlon of the State Commissioner of Excise, liquors are sold to^ them in violation of the law and their conduct toward the violator is- that of an ordinary patron of the place, the State Oommissioner of Bxcise is not estopped from suing to recover the full penalty of the- liquor tax bond given to secure the good conduct of the premises at which the law was violated, and the evidence of such special agents^ showing such violations does not need corroboration. They are not accomplices because the statute does not make it an offense to pur- chase liquor from one who had no right to sell. Lyman v. Oussani,. 33 Misc. 409, reversed 65 App. Dlv. 27. When undisputed facts show an alleged offense has been committed In breach of the conditions of the bond in suit, a verdict for its full- penalty should be directed. Lyman v. Slienandoah Social Club, 39 App. Div. 459; Lyman v. Oramercy Club, 39 App. Dlv. 661; Cullinan v. Crite- rion Club, 39 Misc. 270, affirmed (without opinion) 86 App. Dlv. — ;, CuUinan v. Parker, 39 Misc. 446, affirmed 84 App. Div. 296; OulKnan v. Stein, 84 App. Div. 292. But a conflict in the evidence upon a material point requires the- submisslon of the case to a jijry. Cullinan v. Furthmann, 70 App. Div.. 110. Surety entitled to separate representation at trial. — Counsel for the- surety of a liquor dealer whose bond is being sued upon is entitled to open and sum up the case and cannot be required to acquiesce in the presentation of the case made by counsel for the principal.. Lyman v. Oussani, 65 App. Dlv. 27. Bankruptcy. — Bankruptcy of the principal on a liquor tax bond relieves him of liability thereunder, but does not relieve the surety. The- defendants are united in interest, although answering separately, so that the plaintiff is not liable in costs to the defendant principal under these circumstances. Lyman v. Ruelil, unreported decision oT ♦Gildersleeve, J. S. C. * Opinion on flie In Department of Excise. 62 LiQuoK Tax Law. [§ 19] Costs. — For taxation and retaxation of costs, where mileage for same witness lias been taxed in more than one action tried at same term, see Lyman v. Joung Men's Cosmopolitan Club, 38 App. Div. 220. § 19. The payment of the tax and issuing of the tax certificate — When the provisions of sections seventeen and eighteen of this act have been complied vi'ith and the application proAdded for in sec- tion seventeen is found to be correct in form, and does not show on the face thereof that the applicant is prohibited from trafficking in liquor under the subdivision of section eleven under which he applies, nor at the place where the traffic is to be carried on, and the bond required by section eighteen is found to be correct as to its form and the sureties thereon are approved as sufficient by the 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, aHdrin~a_fiflia»ty.«©-ntai»iHg-- a city of the first class,.. thg_gpecial-d^uty o&mmissi&HeK-foF-sucb- couutj, or-if-the- application -be mada-under-subdivisitnis-ifour-or fi.¥e-0f section eleven of J;hia.act,li.«^ta4e commissioner of excise>- shall at once prepare and issue to the corporation, association, co- partnership or^erson maMng such application and filing such bond and paying such tax, a liquor tax certificate in the form pro- vided for in this act/unless it shall appear by a certified copy of the statement of the result of an election held on the question of local option, pursuant to section sixteen of this act, in and for the town where the applicant proposes to traffic in liquors under the certifi- cate applied for, that such liquor tax certificate can not be law- fully granted, in which case the application shall be refused. Thus amended, L. 1897, chap. 312. CERTIFICATE ISSTIIlfG OFFICEKS HIAVE ONLY ICINTSTEIMAIi BtTTIES. Are bound by statements of applicants. — The duties of county treasurers Bind special deputy commissioners of excise under this section are ministerial and no discretionary power is vested in them when a person who makes application for a liquor tax certificate has brought himself squarely within the terms of the law by complying with the [§ 19] LiQTTOE Tax Law. 63 statutory preliminaries relative to the payment of the Sum assessed upon the proposed traffic in liquors and the filing of an application statement, which Is correct in form and does not show on its face that the applicant is prohibited from trafficking in liquors as described therein, and the presentation of a bond which is approved as to its sureties. People ex rel, Belden Club v. Billiard, 28 App. Div. 140, iffirming 50 N. Y. Supp. 909; Matter of Bridge v. MoJwmann, 36 App. Div. 533, affirming 25 Misc. 213; Matter of Tonatio v. Deperino, 49 App. Div. 84; Matter of Fall v. Meehan, 26 Misc. 611, affirmed (without >pinion) 39 App. Div. 671; People ex rel. Lawton v. Lyman, 33 Misc. i43. " The right of the applicant to a liquor tax certificate Is made to depend altogether upon the statements contained in the application, thus taking away any discretion that might have resided in the officers empowered to issue the certificate " before the amendment of 1897, the purpose of which was doubtless " to prevent any other influ- ence operating upon those 'authorized to grant certificates than the Btatements of the applicants, made under the responsibilities and sub- ject to the penalties imposed by the statute for making false represen- tations." Peiyple ex rel. Belden Olvib v. Billiard, 28 App. Div. 140, affirming 50 N. Y. Supp. 009. " 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." Matter of hyman v. Trite Friends Social and Literary Circle, N. Y. L. J. Dec. 8, 1897. A landlord or a dwelling owner may, under certain circumstances, revoke his consent that traffic in liquor be carried on, but a county treasurer to whom an application statement, proper on its face, has been presented may not exercise discretion and refuse to issue the jertificate applied for. People ex rel. Bickok v.- Goonley, unreported decision of *Andrews, J. S. C. In People ex rel. Burtigan v. ifacj/, unreported decision of *Longley, Columbia Co. J., the Court says: " It seems to me that the scheme jf the statute discloses no purpose on the part of the legislature to £lothe 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 inade- quate; inapt, because the statute in 'terms expressly provides that the county treasurer shall examine the application and bond to see if they are correct in form; inadequate, because no provision is made for taking evidence or hearing proofs, but, on the contrary, on pay- ment of the tax, if the application and bond are found correct in form and the sureties on the bond are approved by the county treas- urer, he is at once to prepare and issue the tax certificate. No pro- • Opinion on file in Department of Excise. 64 LiQuaR Tax Law. [§ 19] vision is made in the statute whereby the allegations of the appiica^ tion 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 affi- davits or otherwise upon the return to the writ." But also bound by local option vote. — The Liquor Tax Law provides for the submission of certain local option questions to determine how the \ liquor traffic may be conducted in towns, if at all, and requires the I town clerk to file in the office of the county treasurer a certified copy ' of the statement of the result of any vote upon such questions. The issuance of a liquor tax eertificate, except in accordance with such i vote, is expressly prohibited. Matter of Barnard v. Rivers, 48 App. Div. 123. Where a certified statement of the result of a vote upon the local option questions shows that the electors of a town have expressed their will that liquors should not be sold in their town, a county treasurer should not " go about to ascertain whether the Section was regular or not and if in his judgment it was not, to ignore the certified statement and issue licenses." People ex rel. Fisher r. Hashrouck, 21 Misc. 188. Because a county treasurer is a ministerial officer and ia controlled by the result of a local option vote, the validity thereof may not be attacked collaterally in proceedings to compel him to issue a cer- tificate, as held in the case last cited. Matter of Rogers, — Misc. — . " The right to sell liquors depends upon the vote, not upon the statement. The statement is the means provided In the act to get the information of the result of the action of the electors to the officer who is to make effective their intent. Presumptively the state- ment is correct and he must be governed by it." People ex rel, Leonard v. Hamilton, 42 App. Div. 212, affirming 27 Misc. 308; People ew rel. Smith v. Eamilton, 29 Misc. 465. But no informality in the statement warrants the county treasurer in ignoring the result. People ex rel. Clint v. Hamilton, 27 Misc. 360 f Matter of O'Hara, 40 Misic. 355. Though a false statement by the town clerk as to the result declared by the board of canvassers should not defeat the will of the electors. Matter of Brown v. Bouton, 38 Misc. 157. Nor will the failure of a town clerk to file any statement nullify the vote actually taken. People ex rel. Smith v. Foster, 27 Misc. 576; Matter of Lyman v. Wells, 28 Misc. 278. [§20] Liquor Tax Law. 65 § 20. Form of liquor tax certificate — The liquor tax certificates shall be furnished by the state commissioner of excise to the sev- eral county treasurers, and to the special deputy commissioners and shall be lithographed or engraved in a suitable manner, and on durable paper, and of the following form : $ No Series of (A suitable device inserted.) Series of STATE OF NEW YOKE. Liquor Tax Certificate. Received from the sum of dollars for excise tax on the business of trafficking in liquor under subdivision of section eleven of the Liquor Tax Law. The business to be carried on at in the of , for the period represented by the coupon or coupons hereto attached. Dated at , 18 . . . . Special Deputy Commissioner for the county of or County Treasurer of County. Severe penalties are imposed for neglect or refusal to place and keep this certificate conspicuously in your place of business. Attached thereto on the left as a part thereof shall be twelve coupons, one for each month of the tax year. On the one on the extreme left shall be printed : " Coupon for liquor tax certificate number for May, ," and each coupon shall be similarly printed except as to the month. A tax certificate similar in form shall be issued by the state commissioner of excise, to those applying under subdivision four of section eleven of this act. 5 'fe^ Iz; io, ,SSB o o w < CO X o 3 -^ ^ ''^ ? s > s s «< s £1 .8 I i "9 a S <^ ^ "«> a <3 a ■6 8 ■^ ■^ I a • S c e Coupon for MQUOB. TAX CERTIITCATE No. - for April, 1897. Coupon for UQXXOB TAX CEBTIFICATE No. for March, 1897. Coupon for LIQUOB, TAX CEBTIFICATE No. for Feb., 1897. Coupon for LIQUOR TAX CBETrFICATE No. for Jan., 1897. Coupon for lilQtTOS. TAX CEBTXFICATE No. for Dec, 1896. Coupon for LIQTTOOR. TAX CERTIPICATB No. for Nov., 1896. Coupon for LIQTJOI!, TAX CERTXPICATE No. for Oct., 1896. Coupon for UQUOR TAX CERTIFICATE No. for Sept., 1896. Coupon for LIQUOR TAX CERTiniCATE No. for Aug., 1896. Coupon for LIQUOR TAX CERTIFICATE No. for July, 1896. Coupon for LIQUOR TAX CERTIFICATE No. for June, 1896. Coupon for LIQUOR TAX CERTIFICATE No. for May, 1896. [§21] LiQDOE Tax Law. 67 § 21. Posting liquor tax certificates. — ^Before commencing or do- ( ing any business for the time for which the excise tax is paid and the certificate is given, the said liquor tax certificate shall be in- closed in a suitable wood or metal frame, having a clear glass face i and a substantial wood or metal back, so that the whole of said certificate may be seen therein and shall be posted up and at 'all times displayed in a conspicuous place in the room or bar where the traffic in liguors for which the Sx was paid is carried on, so that all persons visiting such place may readily see the same^but if there be a door opening from the street into the room or; barroom where the traffic in liquors is carried on and a window facing the street upon which such door opens, such certificate shall be displayed in such window, so it may be readily seen from the street.] It shall be unlawful for any person hold- ing a liquor tax certificate to post such certificate, or to per- mit such certificate to be posted upon premises other than those for which such certificate was issued or to which it has been trans- ferred under section twenty-six of this act, or upon premises where traffic in liquors is being carried on by any person other than the holder of such certificate ; or to knowingly deface or destroy any liquor tax certificate. Certificates issued by the state commis- sioner of excise to common carriers shall be framed and posted conspicuously at the bar, if on a boat, where the same may be readily seen by the passengers ; if on a car, the certificate, together with any transfer permit of same,' granted for such car, shall be framed and conspicuously posted in the car for which it was issued or to which it has been transferred, so that all passengers may readily see the same. Whenever a certificate, issued in accord- ance with any of the provisions of this act, shall be lost or de- stroyed without fault on the part of the holder thereof or his agents or employes, a duplicate certificate in lieu thereof, under the original statement and bond, may be issued by the state com- missioner of excise in his discretion and in accordance with such rules and regulations as he may prescribe. When the holder of a liquor tax certificate under this act, shall have presented the appli- cation and bond as required by sections seventeen and eighteen of 68 LiQUOE Tax Law. [§21] this act, and paid the tax assessed by this act, not less than fifteen days before the time fixed for the expiration of such tax certifi- cate, such holder of such tax certificate may continue to traffic in liquors pending the issue of the tax certificate, until notified in writing, by the officer charged with the duty of issuing such tax certificate, that such tax certificate so applied for will not be issued. If the application is refused the moneys thus paid shall be re- turned to the applicant within ten days from the receipt of the same, with said notice, by the said certificate issuing officer. To continue to traffic in liquor after such notice is received is a viola- tion of this law and subjects the person violating, to the penalties prescribed for trafficking in liquors without having a liquor tax certificate. Thus amended, L. 1897, chap. 312; L. 1901, chap. 640; and L. 1903, chap. 486. POSniTG MQUOK TAX CERTIFICATE IN LICENSED PREMISES. Traffic Tinlawful unless certificate is posted. — If a liquor tax certificate is removed from licensed premises and offered for surrender and rebate under § 25 of the Liquor Tax Law, traffic in liquors at such premises while no liquor tax certificate is posted therein is unlawful. 'Matter of Lyman v. Fagan, 26 Misc. 300; Matter of Lyman v. Texter, 69 App. Div. 217, affirming 32 Misc. 210; Lyman v. Cheever, 168 N. T. 43, reversing 52 App. Div. 635, affirming 31 Misc. 100; Matter of Lyman V. Moloney, 53 App. Div. 330, affirming 28 Misc. 385. That the certificate has been removed from the licensed premises during the absence of the proprietor and surrendered for cancellation by a brewing company, under an assignment and power of attorney does not relieve either the certificate holder or the brewing company from the consequences of the unlawful sale of liquor without any certificate posted. Matter of Michell v. James, 41 App. Div. 271. Person named in posted certificate responsible for licensed premises. — If the holder of a liquor tax certificate allows it to remain posted in the premises for which it was issued and the sale of liquors is osten- sibly carried on thereunder, he cannot resist the cancellation of the certificate for violations committed there, whether by his employees or any other person in charge of the premises. Matter of Cullinan V. Kuch, 39 Misc. 641. See also Matter of Lyman v. Texter, 59 App. Div. 217, affirming 32 Misc. 210. [§23] Liquor Tax Law. 69 The statute holds the certificate holder and his surety liable under his liquor tax bond for the good conduct of the business conducted under the certificate at the licensed premises. CulUnan v. Parker, 84 App. Div. 296, affirming 39 Misc. 446. See also Lyman v. Kurts, 166 N. Y. 274; Lyman v. Gramercy Club, 39 App. Div. 661. § 22. Restrictions on the traffic in liquors in connection with other business. — No corporation, association, copartnership or per- son engaged in carrying on the business of selling dry goods or groceries, or provisions, or drugs as a pharmacist, shall be assessed under subdivision one of section eleven of this act, or receive a liquor tax certificate under such subdivision, unless it be to carry on the traffic in liquors under such subdivision one at some other building entirely distinct and separate from, and not communi- cating with the place where, and in which, such business of selling dry goods, groceries, provisions or drugs as a pharmacist is carried on, or if in the same building, then only in a room which is sepa- rated by partitions at least three inches thick, extending from floor to ceiling, with no opening or means of entrance or communication between the room where the traffic in liquors is carried on and the store or rooms in which the selling of dry goods, groceries, pro- visions or drugs as a pharmacist is carried on, so that it is necessary to go into a public street before the one place can be entered upon leaving the other. Thus amended, L. 1897, chap. 312. § 23. Corporations, associations, copartnerships or persons who or which shall not traffic in liquors. 1. ISTo person: a. Who has been or shall be convicted of a felony, or knowingly has in his employ a person who has been so convicted ; or b. Who is under the age of twenty-one years ; or c. Who is not a citizen of the United States and a resident of the state of New York ; or d. Who, shall be convicted for a violation of this act, until three years from the date of such conviction. 70 Liquor Tax Law. [§ 23] e. Whose agent or employee shall be twice convicted for a viola- tion of this act, TintU three years from the date of such second con- viction. 2. ISTo corporation or association incorporated or organized un- der the laws of another state or country ; provided, however, that if such corporation or association be acting as a common carrier or be operating dining, buffet, parlor or sleeping cars in this state, it may be granted a liquor tax certificate under subdivision four of section eleven of this act. And in case any car for which a liquor tax certificate is held shall be withdrawn from the service for re- pairs, or leave the state, such certificate may be temporarily trans- ferred to a substitute car, in accordance with such rules and regula- tions as the state commissioner of excise shall prescribe, without payment of any transfer fee. 3. 'No copartnership, unless one or more of the members of such copartnership, owning at least one-half interest in the business thereof, shall be a resident of this state and a citizen of the United States. 4. No corporation, association, copartnership or person which or who shall have a liquor tax certificate revoked, without convic- tion, in a civil proceeding under subdivision two of section twenty- eight of this act for a violation of any provision of the liquor tax law, until the expiration of one year from the date of the entry of a final order cancelling such certificate. 5. No corporation, association or copartnership which has been or shall be convicted for a violation of this act, nor if an officer, member or agent thereof has been or shall be twice convicted for a violation of this act, until three years from the date of such con- viction. 6. ISTo corporation organized under chapter five hundred and fifty-nine of the laws of eighteen hundred and ninety-five, and the acts amendatory thereof, or under any law which prior to May sixth, eighteen hundred and ninety-five, provided for the organi- zation of societies or clubs for social, recreative or similar pur- [§23] Liquor Tax Law. 71 poses, which traffics in liquors with any person other than the members thereof. 7. Wo corporation, association, copartnership or person, who, as owner or agent, shall suffer or permit any gambling to be done in the place designated by the liquor tax certificate as that in which the traffic in liquors is to be carried on, or in any yard, booth, gar- den or any other place appertaining thereto or connected there- with, or suffer or permit such premises to become disorderly, or carries on or permits to be carried on or is interested in any traffic, business or occupation, the carrying on of which is a violation of law. Thus amended, h. 1897, chap. 312; L. 1900, chap. 80 and' chap. 367. WSO MAY NOT HOLD LIQTTOB TAX CERTIFICATES. "Whoever violates Jjiquor Tax Law. — " The policy of the law Is to pro- hibit him, who has violated the law from holding any certificate; not to permit him, if he holds for example, two certificates for difterent places to hold his certificate for one place where there is no infraction no matter how much the" law may be broken at the other. The policy of the law deals with the person who vends; there is the personal equation; and the law will not resolve him into dual personalities nor localize his offense." Matter of Lyman v. Teaster, 59 App. Div. 217, affirming 32 Misc. 210. One who is convicted of a violation of the Uquor Tax Law in sell- ing liquor without a liquor tax certificate is not eligible to traffic in liquors until after the expiration of three years from the date of his conviction, and, therefore, forfeits any liquor tax certificate held by him at the time of his conviction, although the offense is committed prior to the issuance of the same. People ex rel. Frank Brewery v. CulUnm, 168 N. Y. 258. Felons. — A person convicted of a felony eighteen years previous to an application for a liquor tax certificate and subsequently pardoned i« entitled to receive and hold such certificate. People eao rel. Richardson V. Sackett, 17 Misc. 405. But this is not true of a person who pleads guilty of a felony and received a suspended sentence. People ex rel. Lauoton v. Lyman, 33 Misc. 243. Nor a convicted felon who has never been pardoned. Lyman v. Sohermerliorn, 53 App. Div. 32, affirmed 167 N. Y. 113. 72 Liquor Tax Law. [§24] Traudiilent oopartnership. — An alleged copaxtnership between one who is not a citizen of the United States and a resident of this State and another who claims to be such and owning a one-half interest is not eligible to traffic if this claim be fraudulent. People ex rel. Ochs -y. HUlia/rd, 81 App. Div. 71. Copartnership whose meimber violates law. — While a copartnership may well be a legal entity, it can only act through the agency of its mem- bers, so that a violation of this act by one member affects the part- nership itself and makes it amenable to the provisions of the law. People ex rel. Miller v. Lyman, 156 N. Y. 407, affirming 27 App. Div. 527; Matter of Cullinan v. 8chepper & Co., 68 App. Div. 119. Executor may n SCHOOL- HOUSES. Purpose of restrictive and excepting clauses. — "The main object which the legislature had in view was of course to confine the traffic in liquors within certain limits and to surround it with well-defined restrictions. One of these restrictions is that the church or school shall not be brought into too close proximity to the saloon; hence the limitation of 200 feet. But while endeavoring to protect the church and school from the demoralizing influence of the saloon, the legis- lature was, at the same time, careful to recognize the fact that dealers In liquor might have certain vested rights which ought not to be interferea with and therefore it enacted that where, at the time the law went into effect, a party was lawfully engaged in the sale of 74 Liquor Tax Law. [§ 24] liquors at any particular place, such traffic might be continued at that place although it was within the prohibitory terms of the statute. This exception was manifestly 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." People ex rel. Bagley v. Hamilton, 25 App. Div. 428. See also People ex rel. Sweeney v. Lammerts, 18 Misc. 343, affirmed (with- out opinion) 14 App. Div. 628; Matter of Zinzow v. Schmidt, 18 Misc. 653; Matter of Place v. Matty, 27 App. Div. 561, affirmed (without opinion) 156 N. Y. 691; Matter of Lewis v. Pilchen, 26 Misc. 532; Matter of Eaight v. Pa/rsell, 33 Misc. 544, affirmed 59 App. Div. 626. How construed. — The courts have uniformly held that the exceptions in respect to churches and schools should be liberally construed in their favor and strictly against applicants for licenses within the prescribed distances and so as to prevent the mischief aimed at by the limitation. Matter of Place v. Matty, 27 App. Div. 561, affirmed (without opinion) 156 N. Y. 691; People ex rel. Bagley v. Hamilton, 25 App. Div. 428, reversing 21 Misc. 375; People ex rel. Sweeney v. Lammerts, 18 Misc. 343, affirmed (without opinion) 14 App. Div. 628; Matter of Zinzaw V. Schmidt, IS Misc. 653; Matter of McCusker v. McCusker, 47 App. Div. Ill; Matter of Lewis v. Pilchen, 26 Misc. 532; Matter of Haight V. Parsell, 33 Misc. 544, affirmed 59 App Div. 626. Building' occupied exclusively as a church. — " The law does not under- take to define or restrict the definition of the words ' occupied exclu- sively as a church,' and I think it must be left to such reasonable con- fitruction as will accomplish the purpose intended by the Legislature, viz: to prevent the traffic in liquor in proximity to such class of build- ings. Under the laws of this State, it is not necessary that a reli- gious society should be Incorporated, nor is it necessary that they should hold to any particular tenets or creed; but great liberality and tolerance is given in the organization of religious societies and the promulgation of religious beliefs. * * * So that it may well be said that this building (West Farms Mission) is used exclusively as a church; that is, a place where a religious society holds its stated meetings for the purpose of religious observances and teaching in accordance with the Christian faith. How long this has continued, or how long it may continue, is immaterial under the statute." Matter of Lyman v. Korndorfer, 29 App. Div. 390. Provided it is bona fide. — A mere sham church is not protected by the statute. Matter of Tail v. Lennon, 38 Misc. 392; Matter of Cruikshank V. Hesterberg, unreported decision of *6aynor, J. S. C. affirmed (with- out opinion) 82 App. Div. 645. 'Opinion on file in Department of Excise. [§ 24] Liquor Tax Law. 75 Incidental uses not oontroUing. — The incidental use of a church building or a portion thereof as a place for holding festivals, fairs, concerts and other church entertainments or as a meeting place for various societies more or less intimately connected with a religious society by whom the building is owned, does not render it less entitled to the protection of the statute, or in any way Impair the exclusive occu- pancy of a building as a church. Matter of Zinzow v. Schmidt, 18 Misc. 653; Matter of Holden v. McCusker, 23 Misc. 446; Matter of McOusker v. McOusher, 47 App. Div. 111. Must be building. — ^Mere foundation walls for a proposed church do not constitute a building occupied exclusively as a church within the meaning of the statute. People ex rel. Sweeney v. Lammerts, 18 Misc. 343, affirmed (without opinion) 14 App. Div. 628. Building occupied exclusively as a schoolhouse. — In Matter of Lyman V. Monahan, 48 App. Div. 275, affirming 28 Misc. 408, it appeared that " there was one small room in the school building which was used as a library in connection with the school and in which charitable, religious or temperance societies occasionally met in the evening and for which they paid a nominal rent to defray the cost of lighting and heating the roomJ' It was held in this case that " the fact that these societies occasionally met in the room did not deprive the building itself of its general character. It was a school building built for and devoted to that use and used exclusively for that purpose within the meaning and intent of the statute. The manifest purpose of the statute in this respect is to prevent the traffic in liquors within a specified distance of a school building in order that. the attendants of the school may not be subjected to the evil influences incident to or connected with the traffic in intoxicating liquors. This is the pur- pose of the statute and the object sought to be accomplished by it, and as such it should receive a liberal construction. Unless the court can see that some portion of the building is devoted to an object foreign to education, it will not nullify the statute by depriving the building of the benefit sought to be conferred upon it." On same street or avenue. — ^A building, situate upon a corner of two streets, fronting upon the other street than that upon which there is a church and having no entrance upon the same street with the latter is still within the inhibition of the statute. Matter of Zinzow v. Schmidt, 18 Misc. 653; Matter of Holden v. MoCusTcer, 23 Misc. 446; Matter of McCusker v. McCusker, 47 App. Div. 111. The same was held in relation to a building situated at the intersec- tion of two roads in a rural district upon one of which there was a sehoolhouse. Matter of Letois v. Pilohen, 26 Misc. 532. 7G Liquor Tax Law. [§ 24] Measurement of distance between place of traffic and ohurch or school- house in a straight line. — The measurement of the distance between a place where the traffic in liquors is to be carried on and a neighboring church or schoolhouse should be taken " in a straight line." "A straight line is one free from angularities or curvatures and is the shortest and most direct distance between two points." Matter of Bolden v. McGuslcer, 23 Misc. 446. The law says " in effect, as explicitly as possible, that the measure- ment shall be tested by the shortest line which could be drawn between the two entrances. This does not permit any angles or curves or digressions for intervening buildings or for street lines." Matter of Lewis V. Pilelien, 26 Misc. 532. Exception in favor of a place which was lawfully occupied for a hotel on March 23, 1896. — The only hotels entitled to the benefit of this exception were those in operation when the Liquor Tax Law was enacted. Matter of Place v. Matty, 2T App. Div. 561, affirmed (without opinion) 156 N. Y. 691. A building was a hotel on March 23, 1896, within the meaning of this section if then kept open for entertaining strangers or travellers or had an innkeeper's license issued therefor. Matter of Moulton v. Acconcia, 59 App. Div. 25, affirmed 168 N. Y. 645. Waived only when hotel business is abandoned. — The privilege extended to hotels under this section has been considered equal to that con- ferred under § 17, sub. 8, despite the absence of the phrase " mot- withstanding such traffic in liquors was not then carried on thereat." Hence suspension of traffic In liquors at hotels in existence on March 23, 1896, does not deprive them of their privileged character if they continue to be occupied as hotels. Matter of Moulton v. Acconcia, 50 App. Div. 25, affirmed 168 N. Y. 645. Exception in favor of a place in which " such traffic in liquors " was " actually lawfully " carried on March 23, 1896. — To determine whether " such traffic In liquors " was " actually lawfully " carried on at a place within 20O feet of a building occupied exclusively as a church or schoolhouse, it is necessary to have recourse to L. 1892, chap. 401, § 43, which went into effect April 30, 1892. This section provides 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 200 feet of a building occupied exclusively as a church or schoolhouse." This law remained in force, as amended by L. 1893, chap. 480, until March 23, 1896. Its privileges having been held to be personal, not transferable and lost by abandonment {People ex ret Cairns v. Murray, 148 N. Y. 171, reversing 13 Misc. 522), in order to [§ 25] Liquor Tax Law. 77 establish the legality of traffic in liquors at such a place on March 23, 1896, it must appear that the party then conducting it, also conducted such traffic on April 30, 1892, and continuously during the intervening period. Matter of Zmzow Vu Sclimidt, 18 Misc. 653; Matter of Place v. Matty. 27 App. Div. 561, affirmed (without opinion) 156 N. Y. 691. There is an important distinction between the restrictive provisions of this section and the similar provisions of the Excise Law of 1892. As above stated, privileges under the previous act for places not hotels within 200 feet of a church or schoolhouse were personal but it has been held that the exceptions to the general provisions of this act were not solely for the benefit of persons actually lawfully traffick- ing in liquor or keeping hotels on March 23, 1896, at places within the prescribed limit, but extended to their successors because the statute refers to places. Matter of Zinzow v.. Schmidt, 18 Misc. 653; People ex rel. Sweeney v. Lammerts, 18 Misc. 343, affirmed (without opinion) 14 App. Div. 628; Matter of Place v. Matty, 27 App. ,Div. 561, affirmed (without opinion) 156 N. Y. 691; People ex rel: Bagley v. Ham- ilton, 25 App. Div. 428, reversing 21 Misc. 375. Waived if traffic is abandoned. — However, the right to traffic at places originally within the exception to the general restrictive provisions of this section may be lost by abandonment or nonuser as formerly, although suspension of traffic under stress of circumstances followed by its resumption at the first reasonable opportunity ought not to produce that effect. Matter of Hawkins v. TMel Bros., 165 N. Y. 188; Matter of Moulton v. Accoruiia, 59 App. Div. 25, affirmed 168 N. Y. 645; Matter of Lyman v. Korndorfer, 29 App. Div. 380; People ex rel. Bagley V. Hamilton, 25 App. Div. 428, reversing 21 Misc. 375; Matter of Lyman V. Fuhrmann, 34 App. Div. 389. In Matter of Hawkins v. TMel Bros., 165 N. Y. 188, the Court of Appeals held that this privilege may be lost because it is " not attached to the property in perpetuity and is not a thing that neces- sarily and under all circumstances runs with the land. It may be lost by abandonment or nonuser when the facts and circumstances are such as to justify the conclusion that the owner intended to dis- continue the liquor traffic at the place. When that Intention is clearly established, the period of time during- which the place Is vacant or used for other purposes is not very material." § 25. Surrender and cancellation of liquor tax certificates; pay- ment of rebates; notice to police officials. 1. If a person holding a liquor tax certificate and authorized to sell liquors under the provisions of this act, against whom no com- plaint, prosecution or action is pending on account of any violation 78 Liquor Tax Law. [§ 25] thereof, and who shall not have violated any provision of the liquor tax law during the excise year for which such certificate was issued, shall voluntarily, and before arrest or iadictment for a vio- lation of the liquor tax law, cease to traffic in liquors during the term for which the tax is paid under such certificate, such person or his duly authorized attorney may surrender such tax certificate to the officer who issued the same or to his successor in office pro- vided that such tax certificate shall have at least one month to run at the time of such surrender ; and provided that no rebate shall be allowed or paid upon the surrender and cancellation of a cer- tificate issued under subdivisions three, five, six or six-a of section eleven of this act, and provided further, that the rebate thereon shall be computed for full months, less fifteen dollars, commencing with the first day of the month succeeding the one in which such certificate is surrendered, unless such surrender be on the first day of the month ; and at the same time shall present to such officer a verified petition setting forth all facts required to be shown upon such application. Said officer shall thereupon compute the amount of rebate then due on said certificate for the unexpired term there- of, and shall execute duplicate receipts therefor shovnng the name of the person to whom such certificate was issued, the number thereof, date when issued, amount of tax paid therefor, and the date when surrendered for cancellation, together with the amount of rebate due thereon at such date as computed by him, the name of the person entitled to receive the rebate, the locality liable for one-half of such rebate, and the name and title of the fiscal officer thereof. One of such receipts said officer shall deliver to the per- son entitled thereto, and the other of such receipts he shall imme- diately transmit, with the surrendered certificate and the petition for the cancellation thereof, to the state commissioner of excise. If withia thirty days from the date of the receipt of such certifi- cate by the state commissioner 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 cancella- tion of such certificate, or an action shall be commenced against him for penalties, such petition shall not be granted until the final [§25] LiQuoE Tax Law. 79 determmation of such proceedings or action ; and if the said peti- tioner be convicted, or said action or proceedings be determined against him, said certificate shall be cancelled and all rebate there- on shall be forfeited, but if such petitioner be acquitted^ and such proceedings or action against him be dismissed on the merits then the state commissioner of excise shall prepare two orders for the payment of such rebate, one order for the one-half thereof, di- rected to the state treasurer, to be paid by him, on the certificate of the comptroller, and one order for the one-half of such rebate, directed to the fiscal officer of the proper locality, to be paid by such fiscal officer out of any excise or other moneys of such locality applicable thereto. If he have no such moneys of such locality in his possession or under his control, then the said fiscal officer shall at once borrow enough money upon the credit of the locality, and he is hereby authorized so to do, to pay said order, and shall pay the same. The money so borrowed shall be a lawful claim against such locality, to be paid as are other legal claims. The aforesaid orders, or the order on the said fiscal officer and the check of the state treasurer for said one half of such rebate moneys, shall be transmitted to the officer who issued such cancelled certifi- cate, or to his successor in office, to be delivered to the holder of the duplicate receipt upon the surrender of such receipt, which re- ceipt shall be immediately transmitted to the said state commisr sioner. Any rebate moneys due on the cancellation of certificates issued by the state commissioner of excise under subdivision four of section eleven of this act, shall be paid by the state treasurer from any moneys applicable thereto, on the certificate or check of the state commissioner of excise^ countersigned by the comptroller. 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, assignee or committee of the property of a person holding a liquor tax certificate be appointed during the time for which such certificate was granted, or a person holding a liquor tax certificate shall die during the term for which such tax certifi- cate was given, such corporation, association, copartnership or re- -ceiver or assignee, or the administrator, or executor of the estate 80 Liquor Tax Law. [§ 25] of such person, or the person or persons who may succeed to such business, or a committee of the property of a person adjudged to be incompetent, may in like manner surrender such liquor tax cer- tificate ; or they may continue to carry on such business, upon such premises, for the balance of the term for which such tax was paid and the certificate given, with the same right and subject to the same restrictions and liabilities as if such persons had been the original applicant for and the original owners of such liquor tax certificate, upon filing a statement and bond, as provided by sections seventeen and eighteen of this act, and not otherwise; but the liquor tax certificate under which such business is carried on shall have written or stamped across the face of the same, over the signature of the officer who issued the same or his successor in office, the words " (herein insert the name of the person), is permitted to traffic in liquor as (here insert the representative capacity whether as assignee, receiver, ex- ecutor, administrator or otherwise) of the original owner of this certificate for the unexpired term thereof." 2. It shall be the duty of any special deputy commissioner of ex- cise or county treasurer, to whom a liquor tax certificate is surren- dered for cancellation and rebate, to immediately serve a written or printed notice upon the commissioner of police, chief of police or chief police officer of the city, borough or village in which the place for which the surrendered certificate was issued is situated, or upon the sheriff of the county, and a constable of the town, in case the certificate was issued for a place sittiated in a town and not vidthin any city, borough or village, which notice shall include a statement of the number of the surrendered certificate, the name and place of residence of the holder of the certificate at the time of surrender, the location of the place for which the certificate was issued or to which it has been transferred, and was held at the time of surrender by street and number, if any^ otherwise such apt de- scription as will definitely locate the premises ; the fact that such liquor tax certificate has been surrendered; that the traffic in liquors at said premises by anyone is not authorized until a new certificate has been obtained therefor ; and the date when such cer- |:§ 25] LiQUOE Tax Law. 81 tificate was surrendered for cancellation. Such notice may be served by mail, by enclosing the same in a postpaid sealed en- velope, duly addressed to such officer and shall be forwarded by registered letter. The special deputy commissioner or county treasurer making such service shall forward to the state commisr sioner of excise a copy of the notice served, with proof of service thereof, and shall attach thereto the registry receipt of the officer to whom addressed as soon as the same is received. Thus amended, L. 1897, chap. 312; L. 19O0, chap. 367; L. 1903, chap. 115 and chapw 486. PBOPEB.TY EIGHTS IN A LIQUOR TAX CERTrFICATB. mere receipt for excise taxes. — In form a liquor tax certificate Is merely a receipt for money paid as an excise tax upon the business of trafficiiing in liquors. Its real import is only that of a voucher for the money paid, because the right to engage in the traffic is derivable not from the certificate but from the statute and from the statements made in the application upon which it was issued. Niles v. Mathusa, 162 N. Y. 546, affirming 20 App. Div. 483, affirming 19 Misc. 96; Matter of Barnard v. Rivers, 48 App. Div. 423; Herman v. &oodson, 18 Misc. 604; Sealzo v. Saelcett, 30 Misc. 543; Lyman v. Scliermerhorn, 53 App. Div. 32, affirmed 16T N. Y. 113; Lvman v. Kane, 57 App. Div. 549; People ex rel. Lawton v. Lyman, 33 Misc. 243; People ex rel. Ochs v. Milliard, 81 App. Div. 71. "Void certificates valueless. — " The only persons who are permitted to surrender a certificate for rebate under the act are those who are authorized to sell liquors." Matter of Lyman v. Texter, 59 App. Div. 217. affirming, 32 Misc. 210. The Liquor Tax Law expressly pro- vides that no person convicted of a felony shall be authorized to sell liquors. " If the applicant for rebate, though holding and surrender- ing a certificate, belonged to the prohibited class defined by the statute when he obtained it, the certificate at all times was null and void and of no legal effect." People ex rel. Lawton v. Lyman, 33 Misc. 248. An alleged copartnership between an alien and an individual repre- sented as having one-half interest in the business, but actually having none, is within the prohibited class. " The contract between the Peo- ple of the State and those to whom the liquor tax certificate was issued, with reference to allowing any rebate, was conditioned upon ■the truthfulness of their application and their right to hold a liquor 6 82 Liquor Tax Law. [§ 25] tax certificate. » ♦ * Inasmuch as they were not eligible to traffic in the liquor business, the certificate issued to them on their false representation was void and no right to recover rebate can be founded thereon." People ex rel. Oclis v. HilUard, 81 App. Div. 71. Violators of the liquor tax law may not apply for a rebate. — If the holder of a liquor tax certificate is authorized to traffic in liquors but desires to surrender his certificate for rebate, there must be no com- plaint, prosecution or action pending on account of any violation of the Liquor Tax Law. This is a condition precedent and it is immar terial whether or not the offenses being prosecuted were committed during the lifetime of the certificate or at the place for which it was issued. People ex rel. Seitz v. l/ymam., 59 App. Div. 172, affirming 32 Misc. 108; Matter of Lyman v. Texter, 59 App. Div. 217, affirming 32 Misc. 210; People ex rel. Frank Brewery v. CulUnan, 168 N. Y. 258^ One conviction of a b'artender, however, does not itself defeat a certificate holder's right to a rebate. People ex rel. Hupfel's Song V. CulUnan, N. Y. L. J. June 18, 1903. Since the recent amendment of this section by L. 1903, chap. 486, another condition pi'ecedent declared not to exist heretofore (People ex rel. Hupfel's Sons v. Gullinan, N. Y. L. J. June 18, 1903) is now added by which every applicant for rebate must show in his petition for rebate that he has not violated the Liquor Tax Law during the excise year for which such certificate w;as issued. Certificate to be returned. — Where it appears that a liquor tax certificate is in existence, the State Commissioner of Excise cannot be called upon to accept the surrender of the same without its physical pro- duction for cancellation. People ex rel. Gra/y v. HilUard, N. Y. L. J. Nov. 30, 1896. Traffic muist cease upon surrender. — The holder of a liquor tax certifi- cate must relinquish his right to traffic in liquor before tendering his certificate for surrender and claiming a right to a rebate. This is a condition precedent which he must show has been complied with if, after investigation, the State Commissioner of Excise refuses to pay the rebate demanded, and furthermore, the surrender receipt given him upon his tendering the certificate for surrender is not even prima facie evidence that his representations upon that point are true. If he did not cease to traffic, this fact is in itself sufficient to defeat a claim for the recovery of the rebate, although no prosecution has ever been instituted. People ex rel. Stevenson Brewing Co. v. Lyman, 67 App. Div. 446, affirmed 173 N. Y. 605; People ex rel. Stevenson Brewing Co. V. Lyman, 69 App. Div. 406^ affirmed 173 N. Y. 604. l§ 25] LiQuoE Tax Law. 83 Thirty days must elapse witliout prosecution.— rThe State Oommlssloner of Bxclse may, however, take the Initiative by Instituting proceedings under § 28 to revoke and cancel the surrendered certificate if he has proof of any unlawful sale of liquor after surrender and thus judicially establish the forfeiture of the rebate at once. Matter of Lyman v. Fagwn, 26 Misc. 300; Matter of Lyman v. Texter, 59 App. Div. 217, aflSrming 32 Misc. 210; Matter of In/man v. Maloney, 53 App. Div. 330, affirming 28 Misc. 385; Matter of Michell v. James, 41 App. Div. 271. When a criminal proceeding, instituted against a certificate holder, surrendering his certificate, on account of an alleged particular offense, committed after surrender, is dismissed on the merits, it no longer constitutes a bar to the payment of the rebate applied for. People eiB rel. Fallert Breicing Co. v. Lyman, 168 N. T. 669, affirming 53 App. Div. 470; People ex rel. Weidmann. Brewing Co. v. Lyman, 69 App. Div. 399; People ex rel. Stevenson Brewing Co. v. Lyman, 69 App. Div. 406, affirmed 173 N. Y. 604. Until every complaint, prosecution or action pending at the time of the surrender or within thirty days thereafter is dismissed on the merits, no right to a rebate attaches whether the offense complained of was committed during the life time of the certificate or not. People ex rel. Frank Brewery v. Cullinan, 168 N. Y. 258; People ex rel. Seits V. Lyman, 59 App. Div. 172, affirming 32 Misc. 108. Or whether the offense was committed at the place for which the certificate was issued or elsewhere. People ex rel. Seitz v. Lym/m, 59 App Div. 172, affirming 32 Misc. 108; Matter of Lyman v. Texter, 59 App Div. 217, affirming 32 Misc. 210. Section 25 prohibits the return of the rebate until after the expira- tion of thirty days from the date of surrender " so as to give reason- able time to determine whether the person surrendering the certificate has been guilty of a violation of the law and in consequence is not entitled to a return of the rebate." Lyman v. Cheever, 168 N. Y. 43, reversing 52 App. Div. 635, affirming 31 Misc. 100. To defeat the claim of a copartnership applying for rebate, the firm need not be Indicted or convicted as such. A violation of the statute by one of the copartners is in legal effect a violation by the copartner- ship. People ex rel. Miller v. Lyman, 156 N. Y. 407, affirming 27 App. Div. 527. Xiquor tax certificate an assignable chose in action but not a chattel to be mortgaged or levied upon. — Whatever property rights the holder of a liquor tax certificate may have are capable of being abso- lutely assigned and transferred pursuant to § 27 as well as capable of conditional assignment as collateral security. As between the assignee and the certificate holder or other parties claiming an interest therein through him, such as a receiver, a liquor tax certificate and the 84 Liquor Tax Law. [§ 25] property right -which it evidences is a chose ia action but not a chattel. Niles V. Mathusa, 162 N. Y. 546, affirming 20 App. Div. 483, affirming 19 Misc. 96; Matter of Jenny v. Manzer, 19 Misc. 244, affirmed (without opinion) 19 App. Div. 627; Anchor Brewing Co. v. Burns, 32 App. Dlv. 272; Albany Brewing Co. v. Barckley, 42 App. Dlv. 385; Koelder v. Flebbe, 21 App. Div. 210; McNeeley v. Welz, 166 N. Y. 124, affirming 20 App. Div. 566. In the two cases last mentioned, liquor tax certificates were treated as choses in action, not as chattels, and effect given to their assignment as such under instruments otherwise in the nature of chattel mortgages. In the case last mentioned, where the mortgagee's equitable Interest in a certificate was protected- from an attempted levy upon the certificate, the Court of Appeals held that a certificate " is not a chattel and may not be mortgaged;" " is not a chattel, but an intangible right;" " Is not subject to levy and sale under execu- tion;" "is a mere chose in action which is Incapable of seizure or delivery by the sheriff;" that " while a certificate is assignable it is not negotiable;" and "is not even assignable without restriction but only upon the condition that the proposed assignee is eligible under the statute to ' carry on the business for which such liquor tax cer- tificate was Issued upon the premises described therein,' and such assignee is required to make a new application, give a new bond and obtain consent to the transfer from the officer who issued the certificate." Receiver's rights in certificate of judgm.ent debtor. — Judgment creditors of a liquor tax certificate holder may reach his property rights therein only through a receiver who may either continue the business of trafficiiing in liquors under the certificate after having filed an application statement and bond pursuant to sections 17 and 18 or may surrender the certificate for cancellation and rebate. Such a receiver talies only the rights left to a certificate holder at the time the receiver was created so that claims of certain assignees may be para- mount and prior to those of a receiver. Herman v. Ooodson, 18 Misc. 604; Niles v. Mathusa, 19 Misc. 96, affirmed 20 App. Div. 483, affirmed 162 N. Y. 546; Matter of Jenny v. Manzer, 19 Misc. 244, affirmed (with- out opinion) 19 App. Div. 627; Albany Brewing Go. v. Barckley, 42 App. Dlv. 835; 70 App. Div. 260. But see Knapp v. Scanlon, 36 Misc. 756. Assi^ee's rights no greater than certificate holder's. — The limitation or forfeiture of the rights of a certificate holder in a liquor tax cer- tificate equally affects the rights of his assignees who talie it " subject to the conditions and restrictions with which the holding of the same by the assignor was invested." People ex rel. Miller v. Lyman, 156 N. Y. 407, affirming 27 App. Div. 527; Matter of Bradley v. Hall, 22 Misc. 301; Matter of human v. Fagan, 26 Misc. 300; Matter of Michell v. James, 41 I§ 26] LiQuoE Tax Law. 85 App. Div. 271; Matter of Lyman v. Moloney, 53 App. Div. 330, afflrmlng 28 Misc. 385; Matter of Lyman v. Texter, 59 App. Div. 217, affirming 32 Misc. 210; People ex rel. Seitz v. Lyman, 59 App. Div. 172, afflrmlng 32 Misc. 108; People ex rel. Lawton v. 14/man, 33 Misc. 243; People ex rel. Frank Breieery v. CtilUnan, 168 N. T. 268; People ex rel. Ochs v. HilliarA, 81 App. Div. 71. 3!iiforceiiieiit of claim for rebate. — A county treasurer has no money in his hands with which to pay a rebate. Albany Brewing Co. v. Barck- ley, 42 App. Div. 335. Neither has the State Commissioner any such money. He merely Issues the necessary check and order upon the state and local fiscal officers. Knapp v. Scanlon, 36 Misc. 756. If the county treasurer refuse to issue the duplicate surrender receipts, mandamus will lie to compel their issuance when wrong- fully refused. People ex rel. Ochs v. Lyman, 25 Misc. 217; People ex rel. Ochs v. Billiard, 81 App. Div. 71. If the State Commissioner of Excise withholds the payment of rebate thereon mandamus has been declared to be the proper remedy. Knapp V. Scanlon, 36 Misc. 756. If there are any issues of fact, an alternative writ should be granted. People ex rel. Stevenson Brewing Co. v. Lyman, 69 App. Div. 406, affirmed 173 N. Y. 604; People ex rel. Stevenson Brewing Co. v. Lyman, 67 App. Div. 446, affirmed 173 N. Y. 605. If there are only issues of law a peremptory writ should be applied for. People ex rel. Miller v. I/yman, 156 N. Y. 407, affirming 27 App. Div. 527; People ex rel. Fallert Brewing Co. v. Lyman, 53 App. Div. 470, affirmed 168 N. Y. 669; People ex rel. Seitz v. Lym.an, 59 App. Div. 172, affirming 32 Misc. 108; People ex rel. Lawton v. Lyman, 33 Misc. 243; People ex rel. Weidmann Brewing Co. v. Lyman, 69 App. Div. 399; People ex rel. Frank Brewery v. Cullinan, 168 N. Y. 258; People ex rel. HupfeVs Sons v. Cullinan, N. Y. L. J. June 18, 1903. ' § 26. Changing the place of traffic. — ^If a corporation, associa- tion, copartnerhip or person, having paid a tax and holding a liquor tax certificate, shall desire to transfer to and carry on such business for which the liquor tax certificate was issued in other premises than those designated in the original application, and in the tax cer- tificate, but in the same city or town, and in premises where such trafiic is not prohibited by this act, upon the making and filing of «. new application and bond in the form and as provided for in sec- tions seventeen and eighteen of this act and the presentation of the 86 Liquor Tax Law. [§ 27 J tax certificate, the officer who issued the same or his successor in office^ shall write or stamp over his signature across the face of the- certificate the words, "The traffic in liquors permitted to be carried on under this certificate is hereby transferred from (here insert the description of the original locality) to (here insert the descrip- tion of the new locality)." § 27. Voluntary sale of a liquor tax certificate. — The corporation, association, copartnership or person to which or to whom any liquor tax certificate is issued, except a certificate issued under sub- divisions three, five or six of section eleven of this act, or their duly authorized attorney, may sell, assign and transfer such liquor tax certificate during the time for which it was granted to any cor- poration, association, copartnership or person not forbidden to traffic in liquors under this act, nor under the subdivision of section eleven under which such certificate was issued, which or who may thereupon carry on the business for which such liquor tax certifi- cate was issued upon the premises described therein, if such traffia is not prohibited therein by this act, during the balance of the term of such tax certificate, with the same rights, and subject to the- same liabilities as if such corporation, association, copartnership or person were an original applicant for such certificate and the orig- inal owner thereof, upon the making and filing of a new applica- tion and bond by such purchaser in the form and as provided for by sections seventeen and eighteen of this act, and the presentation of the tax certificate to the officerwho issued the same orto 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 nam& of the corporation, association, copartnership or person to which or to whom the same is transferred) ;" provided, however, that na such sale, assignment or transfer shall be made except in accord- ance with the provisions of the liquor tax law, nor permitted by any holder of a certificate who shall have been convicted, or b© under indictment, or against which or whom a complaint under oath shall have been made, and be pending, for violating the pro- [§ 28] Liquor Tax Law. 87 visions of this act or who shall have violated any provision of the liquor tax law. For each endorsement under sections twenty- five, twenty-six and twenty-seven of this act, the officer making the same shall charge and receive the sum of ten dollars to be paid by the applicant, which sum shall be apportioned and accounted for as are taxes, as provided in sections thirteen and fourteen of this act. Thus amended, L. ISOT, chap. 312. VOIitTNTABY SALE AUB TKAlTSrEB, OF LIQUOE. TAX CERTIFICATE. Void certificate not transferable. — Inasmuch as a liquor tax certificate, when unlawfully obtained, is void, a transferee thereof can acquire no rights under it whatever. People ex rel. Lawton v. Lyman, 33 Misc. 243; People ex rel. OcJis v. Silliard, 81 App. Div. 71. TTntil transfer is oontpleted the law recognizes only the x>«rson to whom issued. — " When a liquor tax certificate has been issued or transferred to a person upon his application and filing of a bond, he is the prin- cipal whom the law will look to during the conduct of the business and will hold responsible for compliance with the statutory pro- visions." Lyman v. Eurte, 166 N. Y. 274. That he has parted with all interest in the certificate or business conducted under it is immaterial. Matter of Cullman v. Kuch, 39 Misc. 641; CulUnan v. Parker, 84 App. Dlv. 296, affirming 39 Misc. 446. Assig^nee may not lawfully traffic until statute is complied with. — The assignee of a certificate, to whom it has not been transferred in accord- ance with the provisions of this section, is not the holder of the certificate or entitled to carry on the business of trafficking in liquors under it. People ex rel. Miller v. Lyman, 156 N. Y. 407, affirming 27 App. Div. 527; Matter of Lyman v. Pagan, 26 Misc. 300; Matter of Michell y. James, 41 App. Div. 271; Mies v. Math^sa, 162 N. Y. 546, affirming 20 App. Div. 483, affirming 19 Misc. 96; Matter of Jenmy v. Manzer, 19 Misc. 244, affirmed (without opinion) 19 App. Div. 627; Matter of Lyman v. Texter, 59 App. Div. 217, affirming 32 Misc. 210. § 28. Subdivision 1. Certiorari upon refusal to issue or transfer liquor tax certificates, and of the revocation and cancellation of a liquor tax certificate. — Whenever any officer charged with the duty of issuing or consenting to a transfer of a liquor tax certificate un- 88 Liquor Tax Law. [§ 28} der the provisions of this act shall refuse to issue or transfer the same, such officer shall indorse upon the application therefor, or attach thereto a statement of his reasons for such determination, and shall, if requested, furnish to the applicant a copy of such state- ment. Such applicant shall have the right to a writ of certiorari to review the action of such officer. The writ may be issued by, returnable to, and heard by a county judge of the county, or a jus- tice of the supreme court of the judicial district in which the prem- ises are situated in which the applicant desires to carry on the busi- ness of trafficking in liquors. If the writ be granted, the officer to whom it is directed shall in his return thereto, include copies of all the papers on which his action was based, and a statement of his reasons for refusing to grant such application. If such judge or justice shall upon the hearing determine that such application for a liquor tax certificate or for a transfer 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 or transferred, such judge or justice may make an order commanding such officer to grant such application and to issue or transfer such liquor tax certificate to such applicant upon the payment of the tax or fee therefor. Subdivision 2. At any time after a liquor tax certificate has been issued to any corporation, association, copartnership or person un- der section eleven of this act, said liquor tax certificate may be re- voked and cancelled if material statements in the application of the holder of such certificate were false, or if the consents required by section seventeen are not properly filed as required by said section, or if the holder of said certificate was not for any reason entitled to receive or hold the same, or to traffic in liquors, or if any provision of this act is violated at the place designated in said certificate as the place where such traffic is to be carried on by the holder of said certificate, or by his agent, servant, bartender or any person whom- soever in charge of said premises, or if the holder of said certificate shall violate any of the provisions of this act at any place. For the purpose of obtaining such an order, the state commissioner of excise, the deputy state commissioner of excise, or any citizen of U 28] LiQuoE Tax Law. 89 the state may present a verified petition to a justice of the supreme court, or a special term of the supreme court of the judicial dis- trict, or the county judge of the county in which such traffic in liquors is designated to be carried on, or in which the holder of such certificate resides, or, if such holder of a liquor tax certificate is authorized to traffic in' liquor under subdivision four or five of section eleven of this act, to a justice of the supreme court of the judicial district in which the principal office within this state of the corporation, association, copartnership or person is located, for an order revoking and cancelling such certificate upon either or all of the grounds hereinbefore stated. Such petition shall state the facts upon which such application is based, and, if made by a citizen other than the state commissioner or deputy state commissioner of excise, must have indorsed thereon or attached thereto the written consent of the state com- missioner of excise that the proceeding be instituted and prose- cuted, and the state commissioner of excise shall be made a party to the proceeding, and from all other parties thereto shall be en- titled to due notice of all proceedings, and shall be duly served with copies of all papers and pleadings where such notice of pro- ceedings is not given to, and such service of papers and pleadings is not made upon, an attorney appearing therein upon his behalf pursuant to a designation under section ten of this act. Upon the presentation of the petition and such consent whenever necessary, the justice, judge or court shall grant an order requiring the holder of such certificate to show cause before him, or before a special term of the supreme court of the judicial district, on a day specified therein, not more than ten days after the granting thereof, why an order revoking and cancelling such liquor tax certificate should not be granted; and said order shall also contain an injunction re- straining the said certificate holder from transferring or surrender- ing such certificate for rebate, except as is hereinafter provided, until the final determination of the proceeding. A copy of such peti- tion and order shall be served upon the holder of such certificate, and the officer issuing the same, or his successor in office, and upon the state commissioner of excise, in the manner directed by such 90 Liquor Tax Law. [§ 28] order, not less than five days before the return day thereof. On the day specified in such order, the justice, judge or court before whom the same is returnable shall grant such order revoking and cancel- ling the said liquor tax certificate, unless the holder of said liquor tax certificate shall present and file an answer to said petition,, which answer denies each and every violation of the liquor tax law alleged in the petition, and raises an issue as to any of the facts ma- terial to the granting of such order, in which event the said justice, judge or court shall hear the proofs of the parties and may, if deemed necessary or proper, take testimony in relation to the alle- gations of the petition or answer, or appoint a referee to take proofs in relation thereto, and report the evidence to such justice, judge or court, without opinion. If the said evidence establish any of the facts hereinbefore set forth as sufficient to revoke and cancel a certificate, an order shall be granted by said justice, judge or court revoking and cancelling such certificate. Said order shall also provide that the holder of said liquor tax certificate, or any other person having such certificate in his possession or under his control, shall forthwith surrender said certificate to the officer who issued the same, or to his successor in office. A criminal prosecu- tion and conviction for any violation of the liquor tax law shall not be a condition precedent to the granting of an order revoking and cancelling any liquor tax certificate for any violation of this act. Upon the entry of such order in the county clerk's office of the county in which the traffic in, liquors is authorized to be carried on under the certificate so revoked, and filing a copy thereof with the officer who issued such certificate, or his successor in office, and the service of a certified copy thereof upon the holder of said liquor tax certificate, or such substituted service as the court, judge or justice may direct, all the rights of the holder of said liquor tax certificate under such certificate, to traffic in liquors or to any re- bate thereon under this act, shall cease; and the holder of said liquor tax certificate, or any other person having such certificate in his possession or under his control, upon whom service of a cer- tified copy of said order shall be made in like manner, shall imme- diately surrender said certificate to the officer who issued the same, [§ 28] Liquor Tax Law. 91 or to his successor in office. The neglect or refusal on the part of any person to surrender said certificate in pursuance of such order immediately upon the service thereof, shall be a contempt of court,, punishable in the manner provided by the code of civil procedure. Costa upon such proceeding may be awarded in favor of and against the petitioner or the certificate holder, in such sums as in the discre- tion of the justice, judge or court before which the petition is heard, may seem proper. At the time of the return of the show cause- order, or at any time thereafter during the pendency of the pro- ceeding upon five days' notice to the certificate holder by any party, the justice, judge or court granting the same may grant an injunction order restraining the certificate holder, his agents and servants from trafficking under the certificate or certificates sought to be cancelled in the proceeding, or at the place or places for which the same were issued^ and requiring that the said certificate or certificates be immediately delivered to the officer who issued the same, to be held until the final determination of the proceed- ing, provided that, if the material allegations of the petition be upon information and belief, the justice, judge or court must re- quire the presentation of one or more affidavits containing positive averments made by witnesses having personal knowledge of facts- constituting one or more of the violations of law set forth in the petition. Before granting such injunction order said justice,, judge or court may, if the petitioner be a citizen other than the state commissioner or deputy state commissioner of excise, require- him to file a bond, with sufficient sureties, to the certificate holder, to be approved by the justice, judge or court, conditioned that, in case the certificate holder is successful in the proceeding, the peti- tioner will pay all costs taxed and allowed, and all damages not ex- ceeding the sum of two hundred and fifty dollars. Such injunc- tion order shall be served upon the certificate holder as provided therein, and failure to comply with its requirements shall be a con- tempt of court. N'o proceeding instituted for the cancellation of a liquor tax certificate shall be suspended, compromised, settled or discontinued except by order of the justice, judge or court before which the same is pending, upon not less than eight days' written 92 Liquor Tax Law. [§ 28] notice to all parties, including the state commissioner of excise, of the time and place, when and where application for such order will he made. The granting of such order of discontinuance must be for sufficient cause in the discretion of the justice, judge or court, which must be recited therein, and shall be upon such terms and conditions as shall be prescribed in the order. If any person shall attempt or offer to make any settlement or compromise of any such proceeding, except as above provided, or shall demand, or receive, or offer to receive, directly or indirectly, any money or other thing of value as a consideration for not commencing or prosecuting any proceeding for the cancellation of a liquor tax certificate, he shall be guilty of a misdemeanor, and, upon conviction, shall be subject to the same penalties prescribed in subdivision one of section thirty-four of this act. In case a liquor tax certificate is surrend- ered pursuant to an injunction order or otherwise duriag the pend- ency of a cancellation proceeding, and the petitioner shall be im- successful therein, the final order shall provide that a pro rata re- bate be computed by the state commissioner of excise for the ac- tual time that traffic has been suspended under the injunction order, and the said state commissioner shall prepare two orders for the payment of such rebate, one order for the one-half thereof di- rected to the state treasurer, to be paid by him on the certificate of the comptroller, and one order for the one-half of such rebate di- rected to the fiscal officer of the proper locality, to be paid by such fecal officer out of any excise or other moneys of such locality ap- plicable thereto, as provided in section twenty-five of this act in ersons frequenting a hotel had ordered whiskey under circumstances from which the fact that they had not resorted to the hotel for the purpose of obtaining in good faith a meal therein should have been known, it was held to be a mere subterfuge to serve sandvnches with the liquor though paid for, and that even if the callers should be regarded as guests and the sandwich as a meal, "the occurrence was nothing less than the selling of meals to the guests with their liquor; a palpable evasion of the letter and spirit of the law and a, practical transposition of its express terms to accom- [§ 31a] Liquor Tax Law. Ill) plish such evasion, the sate of liquor being thus made the primary thing and the sale of the sandwich being secondary aad incidental thereto." Matter of Cullman v. Young, 41 Misc. 3. But where a mea.1 is api>arently ordered in good faith and liquors are served while it is in the course of- preparation, a hotel proprietor might be excused under the circumstances if his guests should sur- reptitiously leave the premises before obtaining the meal. Matter of Cullman v. Hartman, 75 App. Div. 301; Matter of Cullman v. Porges, N. Y. L. J., July 22, 1903. Social clubs. — ^The right of a social club to enjoy the privileges conferred by the statute upon certain organizations relative to traflBc during the usual prohibited hours must be pleaded in defense of an alleged unlawful sale of liquors and must be established by the claimant. Matter of Lyman v. Young Men's Cosmopolitan Club, 28 App. Dlv. 127; Cullman v. Trolley Cltib, 65 App. Div. 202; Gullinan v. Criterion Club, 39 Misc. 270, affirmed (without opinion) 86 App. Div. — ; Matter of hymam, V. True Friends Social & Literary Circle, N. Y. L. J., December 8, 1897. An organization which originally may have been entitled to the benefit of this exception may lose it if conducted In a disorderly man- ner or for the purpose of evading the restrictive provisions of the Liquor Tax Law. Matter of Lyman v. Young Men's Cosmopolitan Club, 28 App. Div. 127; Matter of Lyman v. Oramercy Club, 28 App. Div. 209; Matter of Lyman v. Erie County Athletic Club, 46 App. Div. 387, affirmed 163 N. Y. 552. § 31a. The holder of a liquor tax certificate under section eleven of this act who shall be the keeper of a hotel, lodging or boarding house shall, during the time such certificate is held, whenever and as often as the same shall be required, and within twenty-four hours from the service of a written notice therefor, deliver per- sonally to the county treasurer or special deputy commissioner who issued the liquor tax certificate held by such hotel keeper, at his office, for immediate transmission to the state commissioner of excise, a verified report which shall contain a true and com- plete statement of the names of all persons entertained by him as guests, lodgers or boarders, stating after each name the date since when such guest, lodger or boarder has been permanently and con- tinuously an inmate of said hotel, lodging or boarding house, which report shall cover the period specified by the state com- missioner of excise in his notice therefor and all facts pertinent 120 LiQuoE Tax Law. [§ 33] thereto required by said notice. Service of such notice upon any person in charge of the premises shall be sufficient. Every such certificate holder shall keep a daily record of all persons enter- tained at said hotel, lodging or boarding house as a guest, boarder or lodger, with the time of arrival and departure set opposite each name, which record shall at all times be subject to inspection by any special agent appointed under this act, who may enter upon said premises for that purpose at any time when the same are open. Any person who shall neglect or refuse to keep such record, or to allow inspection of the same or to make such report, as above provided, shall be guilty of a misdemeanor, and, upon conviction, shall be subject to the same penalties prescribed in sub- division one of section thirty-four of this act. Thus amended, L. 1901, chap. 640; and L. 1903, chap. 486. § 32. Sales and pledges; when void — 'Eo recovery shall be had in any civil action, to recover the purchase price of any sale on credit of any liquor, to be drunk on the premises, where the same shall be sold. All securities given for such debt shall be void. Any person taking such security, with intent to evade this section, shall forfeit a penalty of fifty dollars for each offense. Each assignment, sale or pledge of articles or property exempt, by law, from execution, and every levy or sale of such articles or prop- erty by virtue of an execution by consent of the defendant therein, shall be void, where the consideration, or any part thereof, for which such assignment, sale or pledge was made, or for the debt on which judgment was rendered in any court and on which such execution was issued, was for the sale of liquors. Thus amended, L. 1897, chap. 312. § 33. Persons liable for violation of this act. — ^Any person engaged in the traffic in liquors, whether as officer of a corpora- tion, or association, or as a member of a copartnership, or an indi- vidual, shall upon conviction of a violation of any of the pro- visions of this act be liable for and suffer the penalties imposed therein ; and any clerk, agent, employee or servant shall be equally [§33] LiQUOK Tax Law. 121 liable as principals for any violation of the provisions of this act, and each violation of any of the provisions of this act shall be construed to constitute a separate and complete ofEense, and for each violation on the same day, or on different days, the person or persons offending shall be liable to the penalties and forfeitures imposed by this act; and in the following section providing for penalties and forfeitures when corporations or associations are referred to, and penalties and forfeitures are imposed thereon, the same shall be understood to mean and apply to the officers of such corporation or association. I'orm of indictment. — An indictment charging the sale of liquor to speci- fied persons and divers other persons whose names to the grand jury are unknown is not demurrable as charging more than one crime. People V. Schmidt, 19 Misc. 458; People v. Huffman, 24 App. Dlv. 233; People V. Haren, 35 Misc. 590. If the names of persons to whom liquor has been sold, are unknown to the Grand Jury, such fact should be stated In the indictment. People v. Ferranto, unreported decision of *Sutherland, Monroe Co. J. An Indictment charging in one count the selling of liquor on Sunday and in the second count the ofEering and exposing for sale of liquor on Sunday, is not demurrable as charging two offenses, where the identity of the transaction set forth in both counts Is plain on the face of the Indictment. People v. Haren, 35 Misc. 590. In charging a violation of clause " a " of § 31, it is permissible to set forth three different ways in which the same offense may have been committed; first, by the exposing for sale; second, by a sale and delivery; and third, by the giving, away of the same kind of liquor to the same persons on Sunday, and if the names of such persons are stated as unknown, it will be presumed that all three counts refer to the same persons. " 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 proper; if it amounts to a sale and delivery, the people will stand upon the second count; and if it shall appear to be the giving away of liquor, the third count will suffice. The plead- ing is undoubtedly proper if the different counts refer to the same transaction." People v. Brede, unreported decision of *Sutherland, Monroe Co. J. In charging the unlawful sale of liquor on Sunday, it is not neces- sary to negative the exceptions to the general prohibition against such traffic in favor of hotel keepers, pharmacists and social clubs. People 'Opinion on file in Department of Excise. 122 Liquor Tax Law. [§ 33] V. Grotty, 22 App. Div. 77; People v. Clarh, 61 App. Div. 500; People v. Haren, 35 Misc. 590. In charging the crime of selling liquor contrary to the local option provisions of section 16, it is not sufficient to allege that the defendant wrongfully and unlawfully sold liquor, but the indictment must con- tain such a statement of the acts constituting the crime as will enahle the defendant to know precisely what it is alleged he has done by way \ of violation of the Liiquor Tax Law, so that he may meet the proof \ which is likely to be offered against him. It is, therefore, necessary to allege that the liquor was sold by the defendant contrary to the / controlling vote had upon the subject of local option. People v. Bates, j 61 App. Div. 559. ' Each sale of liquor without a liquor tax certificate is a distinct offense, but a conviction on a plea of guilty to one indictment is a bar to subsequent prosecution under another for any offense which was provable against the accused under the first. People v. Satchwell, 61 App. Div. 312. Proof. — It is manifestly improper upon a trial under indictment charging the sale of liquor to two persons jointly to prove independent sales to each. People v. Huffman, 24 App. Div. 233. It is error to charge the jury that a defendant may be convicted of giving away liquor under an indictment which only charges its sale. People V. Simnacher, 68 App. Div. 650. Having proved the sale of liquor to a minor on or about the time specified in an Indictment, proof of another sale of liquor not suf- ficiently connected with the occasion named in the Indictment, is inad- missible. People V. Andrus, 74 App. Div. 542. The sale of liquor to a minor under the age of eighteen years having been established, proof of good faith on the part of the defendant is immaterial, but evidence tending to Impeach the witness by whom the age of the minor is established should not be excluded, and evi- - deuce as to the defendant's general disposition toward the offense of the nature charged, and not proven to be the particular offense charged, is prejudicial. People v. Werner, 174 N. Y. 132. A conviction for selling liquor to a minor shoulql not stand upon the minor's evidence as to his age if his statements with reference thereto are conflicting. People v. Andrus, 74 App. Div. 542. Upon proof that a police officer in citizen's clothes, and a stranger to the defendant, entered a saJoon on Sunday, stood before the bar, ordered a drink of whisky from the defendant, who was behind the bar, and who placed a whiskey bottle and glasses upon it, that the liquor was poured out and drunk, is sufficient to establish the charge of offering and exposing liquor for sale on Sunday. People v. Clark, 61 App. Div. 500. Good character is not a defense where from the evidence the jury Is satisfied beyond a reasonable doubt that a defendant is guilty. People V. Dippold, 30 App. Div. 62. [§ 34] LiQUOE Tax Law. 123 § 34. Penalties for violation of this act. — 1. Any person traffick- ing in liquors, who is prohibited from so doing or who so traffics without having lawfully obtained a liquor tax certificate ; or con- trary to the provisions of section sixteen of this act ; or who shall neglect or refuse to make application for a liquor tax certificate, or give the bond, or pay the tax imposed as required by this act, shall be guilty of a misdemeanor, and upon conviction therefor j [ . shall be punished by a fine of not less than two hundred dollars^ | nor more than twelve hundred dollars, provided such fine shall/ '. equal at least the amount of one-half of the tax for one year, imposed by this act upon the kind of traffic in liquors carried on, where carried on, or which would be so imposed if such traffic were lawful, and may also be imprisoned in a county jail or peni- tentiary for the term of not more than one year. 2. Any corporation, association, copartnership or person,/wb.o shall make any false statement in the application required to be presented to the county treasurer or other officer to obtain a liquor tax certificate, or to obtain a transfer thereof, lor who shall violate any of the provisions of sections eleven, twenty-one, twenty-two, twenty-three, twenty-four, thirty or thirty-one, shall be guilty of a misdemeanor J and upon conviction therefor shall be punished -j by a fine of not more than five hundred dollars or by imprison- ( ment in a county jail or penitentiary for a term of not more than one year, or by botb such fine and imprisonment, and shall forfeit the liquor tax certificate, and be deprived of all rights and privi- leges thereunder, and of any right to a rebate of any portion of the tax paid thereon, and such certificate -shall be surrendered to the officer who issued it, or to his successor in office, who shall immediately forward the same to the state commissioner of excise for cancellation, and if the corporation, association, copartnership or person convicted be a pharmacist holding a license issued by the board of pharmacy, the said board of pharmacy shall, in addi- tion to said penalties, immediately revoke said license, and no liquor tax certificate shall be issued to any corporation, associa- tion, copartnership or person to traffic in liquors at said store or place, under subdivision three of section eleven of this act for the 124 LiQUOE Tax Law. [§ 34] term of one year from the date of said conviction ; but this clause does not apply to violations of section thirty-one of this act by a , person not holding a liquor tax certificate, the pimishment for/ which is provided in the first clause of this section. ' 3. If there shall be two convictions of clerks, agents, employees, or servants of a holder of a liquor tax certificate, for a violation of any provision of this act, the liquor tax certificate of the prin- cipal shall be forfeited, and the said principal shall be deprived of all rights and privileges thereunder, and of any right to any rebate of any portion of the tax paid thereon, and such certificate shall be surrendered to the oflBcer who issued it or to his successor in office, who shall immediately forward the same to the state com- missioner of excise for cancellation. 4. No liquor tax certificate shall be issued to any person con- victed of a violation of the liquor tax law within three years from the date of such conviction, nor shall any such person have any interest therein, or become a surety on any bond, required under section eighteen of this act, during such period. 5. Any willful violation by any person of any provision of this act, for which no punishment or penalty is otherwise provided, shall be a misdemeanor. 6. Whenever any fine is imposed upon conviction for violation of any provision of the liquor tax law, the judgment in such case must provide that the person thus fined be imprisoned until the fine is satisfied, which imprisonment cannot exceed one day for every dollar of the fine, nor be less than one day for every five dollars of the fine. Thu8 amended, L. 1897, chap. 312; L. 1899, chap. 398; L. 1900, chap. 367; and L. 1903, chap. 486. Classification of penalties. — ^The conviction of a violator of the Liquor Tax Law punishable under sub. 1 of this section causes a forfeiture of any liquor tax certificate held at the time of conviction. People esB rel. Frank Brewery v. CtilUnan, 168 N. Y. 258. [§ 35] LiQUOE Tax Law. 125 The offense of trafficking in liquor witliout liaving lawfully obtained a liquor tax certificate is a violation of ! 31, although sub. 1 of this section prescribes the penalty. People v. Bagley, 41 Misc. 97. Offenses committed prior to the amendment contained in L. 1903, chap. 486, then punishable under sub. 1 of this section, are now pun- ishable upon conviction with the penalty prescribed in § 15 of the Penal Code. People v. Oleese, 41 Misc. 102. In imposing sentence under sub. 1 of this section, a term of im- prisonment merely is unauthorized. People ex rel. Caldwell v. Wood, unreported decision of *Dwight, J. S. C. § 35. Jurisdiction of courts; reports of magistrates. Subdivision 1. Except as otherwise provided by this act, all pro- ceedings instituted for the punishment of any violations of the provisions of this act, the penalties for which are prescribed in subdivisions one, two, three or four of section thirty-four, 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 felony ; except that a magistrate shall issue a warrant of arrest upon information and depositions and examine the case as now provided by law, but if it shall appear upon such examination that a crime, not triable by a court of special sessions has been committed, and that there is' sufficient cause to believe that the person or persons charged with such crime is guilty thereof, such magistrate shall admit such person or persons to bail, in a sum not less than one thousand dollars, and in default of bail shall commit him or them to the sheriff of the county or if in the city of New York to the keeper of the city prison of the city of New York. A magistrate by whom any person charged with a violation of the provisions of the liquor tax law, shall be admitted to bail or committed to the sheriff or other proper officer of the county, upon such charge shall immediately notify the state commissioner of excise in writ- ing of the fact of such arrest and the result of such examination, stating the name and residence of each person accused ; the date when admitted to bail or committed ; the name, 'residence and address of the complainant, and of each witness sworn in support 'Opinion on file in Department of Excise, 126 Liquor Tax Law. [§.35] of the charge in case a preliminary examination shall have been had, and shall at the same time transmit a duplicate copy of such report to the district attorney of the county. Subdivision 2. Courts of special sessions shall have exclusive jurisdiction to try and determine, according to law, all complaints for violations of sections forty and forty-one of this act and also all violations of the liquor tax law defined by subdivision five of section thirty-four as a misdemeanor. 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. Thus amended, L. 1897, chap. 312. Warrant of arrest may issue on information of a police officer or any citizen. — Any citizen possessed of knowledge of a violation of the Liquor Tax Law is privileged to malje an information before a mag- istrate and cause the arrest of an offender without the information being first laid before the district attorney. Such a course may also be talien by a police officer irrespective of the latter's duty to notify the district attorney pursuant to § 37. People ex rel. Sckuler v. Schatis, 50 App. Div. 544. Form of information should not be in the alternative. — A crime may be charged to have been committed in different manners or by different means, but an information charging that a defendant did " sell or give away " certain liquors charges no offense. People ex rel. Schuler V. Sehatz, 50 App. Div. 544. Preliminary examination before arrest. — Preliminary to proceedings under this section and for the purpose of ascertaining how a particu- lar violation of the Liquor Tax I^aw has been committed, proceedings may be commenced under § 148 of the Code of Criminal Procedure by any person having Isnowledge or information that such an offense has been committed, but a complaint or information which merely con- tains a charge that the law has been violated without specifying any particular offense Is insufficient. People ex rel. Sandman v. Tuthill, 79 App. Div. 24. Illegal evidence before grand jury. — An indictment found by a Grand Jury against one who has appeared before it and testified in relation to offenses committed by other persons, or other offenses committed by himself, other than those upon which he is indicted, will not be dis- missed in the absence of proof that the jury was influenced thereby, and that there was not other sufficient proof to support the indict- ment. People V. Eayes, 28 Misc. 93. [§ 35a] LiQuou Tax Law. 127 § 35a. Jurisdiction of courts of special sessions in the city and «onnty of New York. — After a person has been held to bail or committed to the keeper of the city prison by a magistrate, upon a complaint for a Yiolation of any of the provisions of the liquor tax law in the city and county of ISTew York, as provided in sec- tion thirty-one, all further and subsequent proceedings instituted for the purposes mentioned in section thirty-five of this act shall be prosecuted in the court of special sessions in and for said city and county in the manner prescribed by law for the trial of mis- demeanors committed therein. Upon the conviction in such court of special sessions of any person charged with a violation of any of the provisions of the liquor tax law, judgment shall be pro- nounced by the said court pursuant to the provisions of this act, and all fines imposed shall be collected and paid over to the special deputy commissioner of the county to be apportioned and disposed of as provided by section thirteen. Thus amended, L. 1897, chap. 312. JTJmSDICTIOU 01" COURTS OF SPECIAL SESSIONS IN NEW YORK CITY. Extent of territorial jurisdiction. — The courts of New York county have jurisdiction of violations of the Liquor Tax Law committed in that portion of Westchester county annexed to New York city by L. 1895, chap. 934. People v. Boudouin, 19 Misc. 665. By reason of the provisions of the Greater New York Charter, L. 1897, chap. 378, §§ 1406-7, which conferred original jurisdiction of all misdemeanors including violations of the Liquor Tax Law upon courts of special sessions, the provisions of this section are held not to he limited to the county of New York, but should be extended throughout the City of New York, thereby including the counties of Kings, Queens and Richmond. People y. Wolf, 24 Misc. 94. Trial without a jury. — ^Although no trial by jury can be had in the Court of Special Sessions and the removal of excise cases to the Court of General Sessions, where a defendant may have trial by jury after In- dictment, is granted only in the exercise of a favorable discretion, the provisions of this section and the above mentioned similar provisions of the Greater New York Charter are constitutional. People v. Wolf, 24 Misc. 94; People v. Levy, 24 MlsG. 469; People v. Wade, 26 Misc. 585; People V. Cornyn, 36 Misc. 135. ., I 128 Liquor Tax Law. [§ 36] The jurisdiction of tlie court is tlie same whetlier the defendant ia the holder of a liquor tax certificate or not. People v. Bagley, 41 Misc. 97. Transfers to ^neral sessions. — The Greater New York Charter, § 1406, does not require that a certificate of the reasonableness of prosecution by indictment be granted as a matter of course, where the applicant Is held for trial at special sessions. The granting thereof is largely discretionary and the reasons which would justify it must be some- thing more than a mere preference of the defendant for a jury trial or a possible conflict of evidence involving the credibility of witnesses. There should be " facts tending to show that the case is of an excep- tional character; that for some special reason the defendant cannot have a fair trial in the court of special sessions or that there are excep- tional features in the case which render it desirable and proper that the action should be tried before a jury." People v. Levy, 24 Misc. 469. Such transfers should not be permitted where the object is not to obtain a speedy trial but get away from one and through the delays consequent upon the great amount of business before the district attorney and the grand jury and through the necessity of giving pref- erence to the trial of felony and prison cases, to circumvent the law and obstruct the administration of justice or to carry out effectually the purpose of the law. It must be so construed as to defeat all at- tempts to do or avoid in a direct or circuitous manner that which it has prohibited or enjoined. The court must labor to suppress all subtle inventions and circumlocution by which the object and pur- pose of the law will be defeated. People v. Wade, 26 Misc. 585. Relative to the propriety of granting applications for the transfer of excise cases from Special Sessions to General Sessions in the city of New York, a distinction is made between the cases of certificate (holders and those of their bartenders, on account of the difference in penalties likely to follow conviction. People v. Cornyn, 36 Misc. 135. But the promiscuous application of this rule has been disapproved. People V. Wolf, N. Y. L,. J., July 3, 1008. § 86. Collection of fines and penalties and forfeitures of bonds; reports of county clerks. — ^Upon conviction of any person whether as officer of a corporation or as member of a copartnership or aa an individual, for a violation of the provisions of this act, the penalty for which is prescribed in sections twenty-eight, twenty- nine or thirty-four hereof, the court or officer before whom such conviction shall have been had, or the clerk of the court if there [§ 36] Liquor Tax Law. 129 be a clerk, shall forthwith make and file in the office of the clerk of the county in which such conviction shall have heen had a cer- tified statement of such conviction and the sentence, if any; and the clerk of said county shall immediately thereupon enter in the docket book, kept by said clerk for the docketing of judgments in said office, the amount of the penalty or fine imposed, as a judg- ment against the person so convicted or sentenced, and in favor of the state commissioner of excise, and said county clerk shall also enter in the docket of said judgment a brief statement setting forth the fact that said judgment is for a fine or penalty imposed for a violation of the " liquor tax law," and said county clerk shall immediately mail or deliver to the state commissioner of excise a duly certified transcript of said judgment. If the fine imposed be paid iuto court or to any officer, the said officer or clerk of the court shall at once pay the same to the county treasurer or special deputy commissioner of the county or borough, who shall give his receipt theref or^ and shall at once notify the state commissioner of excise of the payment of such judgment, who shall thereupon execute a satisfaction thereof and forward the same to the said county treasurer or special deputy conunissioner, to be delivered to the judgment debtor. If said judgment shall not be paid within five days after such conviction and sentence, the clerk of said county shall issue an execution against the property of such judgment debtor or debtors, against whom said judgment is dock- eted, directed to the sheriff of the county, and at once deliver the said execution to the said sheriff, who shall forthwith proceed to collect the amoimt due on said judgment, together with his legal fees and costs, by levy and sale, in the manner now provided by law for the collection of executions against property, of any goods, chattels, furniture, fixtures and leasehold interest, or other prop- erty of such ^judgnient.: debtor or debtors, whenever found. Such levy sha:ll take precedence- over, a^ny and all liens, mortgages, con- veyances or incumbrances taken or had on such property, subse- quent to the docketing of said judgment in said clerk's office, and no property of said judgment debtor or debtors shall be exempt from such levy and sale. All moneys collected upon execution 9 130 LiQuoE Tax Law. [§ 36] under the provisions of this section shall be paid by the officer collecting the same, less his legal fees, and costs thereon, to such county treasurer or special deputy commissioner who shall appor- tion and account for the same as provided by this act. In case- such judgment debtor or debtors shall have given the bond pro- vided for in section eighteen of this act, the state commissioner of excise may forthwith proceed to collect from the sureties thereon the amount of such judgment, together with the costs of collection, by due process of law, and the issuing of an execution under the provisions of this act shall not be a condition precedent to the enforcement of the provisions and penalties of any bond given by such judgment debtor or debtors pursuant to the provisions of this act. At the end of each month every county clerk shall make under his hand and official seal and forward to the state commis- sioner of excise a written report of all orders or judgments filed or entered in his office during such month in favor of or against the state commissioner of excise, and also a report of all orders or judgments entered in said office in favor of or against any person illegally trafficking in liquor or the holder of a liquor tax certifi- cate in any proceeding or action instituted or brought for the pur- pose of compelling the surrender and cancellation of a liquor tax certificate, or in favor of or against any county treasurer or special deputy commissioner on account of his having issued or trans- ferred or refused to issue or transfer any liquor tax certificate. Such report shall contain the title of the action or proceeding in which each of said orders or judgments was obtained, the date of each order or judgment, also when filed and entered ; and also the substance or purport of such order or judgment; also all indict- ments for violations of the liquor tax law and all judgments of convictions thereon. Such report shall state the date when each indictment was found, the name of the defendant, the time and place when and where the crime was committed, and the particular offense charged; and in case of a conviction shall state the name of the defendant, the date of the conviction and the judgment pronounced thereon, and if the fine imposed shall have been paid in court a statement of that fact. All sealed indictments shall be [§ 37] LiQUOE Tax Law. 131 included in tke first report naade by such county clerk after the defendant therein shall have been arrested or admitted to bail. Said county clerk shall also furnish a complete certified copy of any such order, indictment, judgment or record upon the request of the state commissioner of excise. The fees or compensation of such clerk for making such report and for making and furnishing a certified copy of any such order^ judgment, indictment or record, at the request of the state commissioner of excise, shall be a legal charge against the county in which the office of the said clerk is situated, and shall be audited and paid as are other lawful claims. Thus amended, L. 1897, chap. 312; and L. 1903, chap. 486. § 37. Duties of public officers in relation to complaints and prose- cutions under this act. — ^It shall be the duty of every sheriff, deputy sheriff, police ofiicer or constable, having notice or knowledge of any violation of the provisions of this act, to immediately notify the district attorney of the county in which such violation occurs, by a statement under oath of the facts of such violation, and it shall be the duty of such district attorney when complaint on oath is made of such violation, forthwith to cause the arrest and attend the examination personally or by an assistant, of each person so complained of, unless a term of court with a grand jury in attend- ance shall be appointed to be held in such county within ten days from the time of the receipt by the district attorney of such veri- fied complaint, or unless such accused persons shall have been examined upon such charge and admitted to bail or committed thereon. It shall be the duty of the district attorney to prepare and present to the grand jury of the county all evidence tending to show a violation in each case within his knowledge, or reported to him pursuant to the provisions of this section, or reported to him by the verified complaint of any reputable citizen, except that said district attorney shall prosecute such violations as are speci- fied in subdivision two of section thirty-five in the court of special sessions having jurisdiction thereof and the said district attorney shall prosecute any person violating any of the provisions of this act and for each and every violation thereof. Within five days 132 LiQUOE Tax Law. [§ 37] after the discharge of any grand jury, the district attorney shall file in the office of the clerk of the county a certified statement giving the name and residence of each person charged with a viola- tion of the liquor tax law, which charge shall have been investi- gated and dismissed by such grand jury, and also giving the name and residence of each witness examined in the investigation of each such charge. All officers authorized to make arrests in any city, town or village, and the special agents appointed under sec- tion ten of this act may in the performance of their duties enter upon any premises where the traffic in liquors is carried on or liquors are exposed for sale at any time when such premises are open, except that places occupied by membership corporations incorporated prior to the twenty-third day of March, eighteen hun- dred and ninety-six, which traffic in liquors solely with the mem- bers thereof shall not be entered for inspection by any officer unless such entry and inspection is expressly authorized and directed by the state commissioner of excise by written instruc- tions. Thus amended, L. 1897, chap. 312; L. 1900, chap. 367; and L. 1903, chap. 486. Criminal prosecutions. — " 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 a Grand Jury, or at all, otherwise than under anu by virtue of subpoenas. In that respect they are precisely like other witnesses and are compelled to so attend and testify in the same manner. * * * The only officer or person competent to enforce the law by criminal action is the Dis- trict Attorney. * » * The State Commissioner not only does not direct or command the special agents to appear and testify before the Grand Jury, but would have no right or authority to do so or interfere in any way to prevent an exact and prompt obedience to a subpoena served upon a special agent in such a case." People ex rel. Larkin V. Bull, 23 Misc. 63. Dismissal of indictments on motion of district attorney. — A district attorney may apply to the court, under § 671 of the Code of Criminal Procedure, for the dismissal of an indictment for violation of the Liquor Tax Law without violating this section of the Liquor Tax [R 40] Liquor Tax Law. 133 Law, and becoming liable to the penalty imposed by § 38 of said act unless " there is fair reason to believe from the evidence at command, or which by diligence may be obtained, a conviction can be, or if properly weighed, ought to be, had." People v. Kurinsky, 23 Misc. 504. § 38. Penalties for neglect of public officers to perform their duty under this act. — Any officer who shall neglect or refuse to per- form his duty under the provisions of this act, shall be liable to a penalty of five hundred dollars for each and every offense, and if such officer be a county treasurer or district attorney, he shall be removed from office by the governor after hearing and deter- mination thereon and decision that such neglect or refusal has occurred. Any citizen may prefer charges to the governor under this section. § 39. Recovery of damages in a civil action. — A recovery may be had in a civil action of the damages suffered by reason of the intoxication of any person, from any corporation, association, copartnership or person who shall by selling or giving away liquors have caused such intoxication, if the person or one of the persons suffering such damage shall, previous to such selling or giving away, have given written notice to such corporation, association, copartnership or person, or to their agents or employees or to the person so selling or giving away, forbidding such selling or giving away liquors to the person whose intoxication shall have caused such damage; or such damage may be recovered from any cor- poration, association, copartnership or person owning or renting or permitting the occupation of any building or premises where such selling or giving away of liquors shall have occurred, jointly with the corporation, association, copartnership or person selling or giving away, or severally when the notice herein provided for shall have been given to such owners or their authorized agents, and not otherwise. § 40. Intoxication in a public place — 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 a 134 Liquor Tax Law. [§ 42] fine of not less than three nor more than ten dollars, or by im- prisonment not exceeding 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 thirty 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. Thus ameaded, Ii. 1897, chap. 312. Public intoxication does not make one a disorderly person. — This section originally declared one guilty of public Intoxication to be a disorderly person but he was not one of the disorderly persons afCected by §§ 899-913 of the Code of Criminal Procedure. People ex rel. Shorten v. Markell, 20 Misc. 149. Then as now, public intoxication was a misde- meanor and under § 35, sub. 2, courts of special sessions have exclu- sive Jurisdiction to try and determine all complaints therefor which are not subject to removal and prosecution by indictment under § 57 of the Code of Criminal Procedure. People v. Mulleins, 25 Misc. 599. § 41. Employment of persons addicted to Intoxication by common carriers. — Any person or ofiicer of an association or corporation engaged in the business of conveying passengers or property for hire, who shall employ in the conduct of such business, as an engineer, fireman, conductor, switch-tender, train dispatcher, teleg- rapher, commander, pilot, mate, fireman or in other like capacity, so that by his neglect of duty the safety and security of life, per- son or property so conveyed might be imperiled, any person who habitually indulges in the intemperate use of liquors, after notice that such person has been intoxicated, while in the active service of such person, association or corporation, shall be guilty of a misdemeanor. § 42. Penalties; actions to recover Any corporation, associa- tion, copartnership or person who shall traffic in liquor contrary to the provisions of the liquor tax law, or who shall make a false statement upon application for a liquor tax certificate, or upon application for the transfer or surrender and cancellation thereof, or who shall violate any of the provisions of sections eleven, thir- teen, twenty-one, twenty-two, twenty-three, twenty-four, twenty- [| 42] LiQUOE Tax Law. . 135 five, twenty-six, twenty-seven, twenty-eight, twenty-nine, thirty, thirty-one, thirty-two, thirty-five, thirty-six, or thirty-seven of said law, in addition to the punishment and penalties in this act other- wise imposed and provided, shall be liable to a penalty of fifty dollars for each and every violation, to be recovered by the state commissioner of excise in an action brought in his name as such commissioner, in any court of record in any county of the state, provided that two or more penalties may be sued for and recov- ered in the same action; -and if such corporation, association, co- partnership or person be the holder of a liquor tax certificate, such certificate shall be forfeited. When 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. If judgment be recovered against the holder of a liquor tax cer- tificate in any action for penalties, such judgment shall provide, in addition to the penalties included therein, that such certificate and all rights thereunder of the holder thereof, including all rebate moneys upon cancellation, be forfeited, and that the defend- ant, or any person having such certificate in his possession or under his control, shall surrender said certificate to the officer who issued the same, or to his successor in office, immediately upon the service of a certified copy of said judgment; and neglect or refusal of any person to surrender said certificate in pursuance of the provisions of any such judgment shall be a contempt of court, punishable in the manner provided by the code of civil pro- cedure. All moneys recovered in any such action or actions shall be paid over and accounted for in the same manner as are moneys collected under subdivision four of section eleven of this act. The state commissioner of excise may also in like manner bring an action in his name as such commissioner to recover the penalty provided for by section thirty-eight of this act and the provisions of this section shall apply to the commencement and prosecution of such action and the disposition of all moneys recovered as penal- ties' therein. Thus amended, L. 1897, chap. 312. 136 . Liquor Tax Law. [§ 44] Venue of penalty actions. — When the venue of an action for penalties is laid in a county adjoining the county in which the defendant resides, the place of trial may not be changed to the county of his residence, the language of § 42 being different from that of § 18 and Lyman v. Gramercy Club, 28 App. Div. 30, is not an authority. Lyman v. Matty, 35 App. Div. 227. For insufficiency of moving affidavits, see Lyman v. Corey, 28 App. Div. 623. § 43. Distribution of copies of this act by the secretary of state Immediately upon this act becoming a law the secretary of state shall cause twenty thousand copies thereof to be printed, of which five thousand shall be printed in the German language and shall transmit as soon as possible to the county treasurers and to the special deputy commissioners such number as may in his judg- ment be proper for the use of such treasurers and commissioners, and for distribution by them to persons trafficking in liquors and others. § 44. Laws, grants and charters repealed; saving clause. — ^The provisions of any special or local law, grant or charter in conflict with this act are hereby repealed and annulled. 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 not expired at the time this act takes effect, until the expiration thereof, sub- ject to the provisions of this act^ ia relation to the performance of the duties of boards of excise or excise commissioners by special deputies or special agents designated by the state commissioner of excise. The repeal of 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, for- feiture or punishment incurred prior to the time this act takes effect, under or by virtue of any law so repealed, and the same may be asserted, enforced, prosecuted or inflicted as fully and to the same extent as if such law had not been repealed. All actions [§ 45] LiQuoE Tax Law. 137 and proceedings, civil or criminal, commenced under or by virtue of a law so repealed and pending immediately prior to the taking effect of this act, may be prosecuted and defended to final 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 comTTiissioners or special agents designated by the state commissioner of excise to perform the duties of boards of excise. Iiocal laws superseded. — Section 35 of the Liquor Tax Law conferring jurisdiction of offenses under this act upon certain courts, supersedes local statutes such as the charter of the city of Rochester giving to courts of Special Sessions, held by a police justice, exclusive jurisdic- tion to hear, try and determine all charges of misdemeanor committed in certain territory. People v. Brede, unreported decision of *Suther- land, Monroe Co. J. In holding that the houi's for closing places of traffic, as prescribed in § 31 are not subject to changes by local ordinances fixing different hours of closing, it has been declared that " a careful examination of the Liquor Tax Law leads one almost irresistibly to the conclusion that it was intended as a 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." People V. Weir, unreported decision of *Arms, Broome Co. J. § 45. When to take effect. — This act shall take effect immedi- ately. 'Opinion on file in Department ot Excise. 138 Liquor Tax Law. SCHEDULE OF LAWS EEPEALED. Laws of Chapter Sections 1835 272 All. 1842 157 3. 1843 •. .. 97 1,2. 1872 143 All. 1873 646 All. 1877 419 All. 1887 679 All. 1892 360 All. 1892 401 All. 1892 402 All. 1892 1 403 All. 1892 404 All. 1893 143 All. 1893 221 All. 1893 271 All. 1893 479 All. 1893 480 All. 1893 481 All. 1894 294 All. 1894 720 All. 1895 744* All. 1895 811 All. The original act, L. 1896, chap. 112, known as the Liquor Tax Law, became a law on March 23, 1896, and went into effect immediately. 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, 30, 31, 32, 34, 35, 35a, 36, 37, 40, 42, 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 Jnto effect on March 29, 1898. The next amendatory acts were L. 1899, chap. 398, amending § 16 and § 34, and L. 1899, chap. 434, amending * So in the original ; should be 774. LiQUOE Tax Law. 139 § 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 enactment of L. 3900, chap. 367, amending §§ 11, 13, 16, 17, 23, 25, 25a, 28, 31, 34, 37, which became a law and went into effect on April 10, 1900. The next amen- datory 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 most recent amendatory acts are L. 1003, 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, respec- tively. TABLE OF CASES RELATING TO THE LIQUOR TAX LAW. PAGn Albany Brewing Co. v. Barckley, 42 App. Dlv., 335; 70 App. Div., 260 27, 84, 84, 85 American Brewing Co. ads. City Trust, Safe Deposit and Surety Co., 174 N. Y., 486; afE'g 70 App. Div., 511 59 Anclior Brewing Co. v. Bums, 32 App. Div., 272 84 Andrus ads. People, 74 App. Div., 542 106, 122, 122 Bagley ads. People, 41 Misc., 97 112, 125, 128 Baker v. Bucklin, 22 Misc., 560; affi'd 43 App. Div., 336 27 Balogh V. Lyman, 6 App. Dlv., 271 7, 23 Barckley ads. Albany Brewing Co., 42 App. Div., 335; 70 App. Div., 260 27, 84, 84, 85 Bates ads. People, 61 App. Div., 559 122 Boudouin ads. People, 19 Misc. 665 127 Bowers ads. Cullinan, 41 Misc., 119 58, 60, 114 Bowker ads. Cullinan, 40 Misc., 439 56 Brede ads. People, unreported decision of Sutherland, Monroe Co. J. . 113 116, 117, 121, 137 Broadway Garden Hotel and Cafe Co. ads. Lyman, 33 App. Div. 130. . 60 Brucker ads. Lyman, 26 Misc., 594; aff'd 42 App. Div., 624 56, 58, 114 Brush ads. People ex rel. Sandman, 41 Misc., 56 47 Bucklin ads. Baker, 22 Misc. 560; afE'd 43 App. Div. 336 27 Burns ads. Anchor Brewing Co., 32 App. Div., 272 84 Chandler ads. People ex rel. Crane, 41 App. Div. 178 36 Cheever ads. Lyman, 168 N. Y., 43, rev'g 52 App. Div., 635; aff'g 31 Misc., 100 57, 68, 83, 113 City Trust, Safe Deposit and Surety Co. v. American Brewing Co., 174 N. Y., 486; aff'g 70 App. Div., 511 59 Clark ads. People, 61 App. Div., 500 113, 114, 116, 122, 122 Coonley ads. People ex rel. Hickok, unreported decision of Andrews, J. S. C 42, 48, 63 Corey ads. Lyman, 28 App. Div., 623 136 Cornyn ads. People, 36 Misc., 135. 127, 128 Criterion Club ads. Cullinan, 39 Misc., 270; afC'd 86 App. Div., — 59, 60 61, 113, 114, 119 Grotty ads. People, 22 App. Dlv. 77 113, 114, 116, 121-122 142 Liquor Tax Law. PAGE Cullinan v. Bowers, 41 Misc., 119 58, 60, 114 Cullinan v. Bowker, 40 Misc., 439 56 Cullinan v. Criterion Club, 39 Misc., 270; aff'd 86 App. Div. . .— . .59, 60 61, 113, 114, 119 Cullinan v. Furthmann, 70 App. Div., 110 61 Cullinan v. Hermann, N. Y. L. J., November 29, 1901 60 Cullinan v. Parker, 39 Misc., 446; aff'd 84 App. Div., 296 ;57, 58, 61 69, 87, 114 Cullinan ads. People ex rel. Frank Brewery, 168 N. Y., 258 71, 82, 83 85, 85, 124 Cullinan ads. People ex rel. Hupfel's Sons, N. Y. L. J., June 18, 1903 .82, 82, 85 Cullinan v. Stein, 84 App. Div., 292 24, tS, 58, 61, 114 Cullinan v. Trolley Club, 65 App. Div., 202 16, 60, 61, 113, 114, 119 Cullinan v. Union Surety and Guaranty Co., 79 App. Div., 409 27 Dippold ads. People, 30 App. Div., 62 114, 122 Ely ads. People ex rel. Taylor, unreported decision of Kenefick, J. S. C. 38 Ferranto ads. People, unreported decision of Sutherland, Monroe Co. J 121 Fidelity and Oausalty Co. ads. Shea, 88 App. Div., 305, rev'g 39 Misc., 107 58 Flebbe ads. Koehler, 21 App. Div., 210. 84 Foster ads. People ex rel. Smith, 27 Misc. 576 35, 35, 37, 64, 93 Furthmann ads. Cullinan, 70 App. Div. 110 61 Giese ads. Hilliard, 25 App. Div. 222; aff'd 155 N. Y., 702 27 Ging V. Sherry, 32 App. Div., 354 27 Goodson ads. Herman, 18 Misc. 604 81, 84 Gramercy Club ads. Lyman, 28 App. Div. 30 60, 60, 136 Gramercy Club ads. Lyman, 39 App. Div. 661 57, 61, 69 Guth V. Mehling, 84 App. Div., 586 54 Hamilton ads. People ex rel. Bagley, 25 App. Div., 428; rev'g 21 Misc., 375 74, 74, 77, 77, 93 Hamilton ads. People ex rel. Clint, 27 Misc., 360 37, 64, 93 Hamilton ads. People ex rel. Leonard, 42 App. Div., 212; aff'g 27 Misc., 308 35, 37, 64, 93 Hamilton ads. People ex rel. Smith, 29 Misc. 465 35, 64, 93 Haren ads. People, 35 Misc., 590 113, 114, 116, 121, 121, 122 Hasbrouck ads. People ex rel. Fisher, 21 Misc., 188 35, 64, 93 Hayes ads. People, 28 Misc. 93 126 Herman v. Goodson, 18 Misc., 604 81, 84 Hermann ads. Cullinan, N. Y. L. J., November 29, 1901 60 Hilliard v. Giese, 25 App. Div., 222; aff'd 155 N. Y., 702 27 Hilliard ads. People ex rel. Belden Club, 28 App. Div. 140; aff'g 50 N. Y. Supp., 909 42, 43, 63, 63, 93 Table op Cases. 143 PAQB HlUiard ads. People ex rel. Gray, N. Y. U J., November 30, 1896 82 Hilliard ads. People ex rel. Gress, 40 Misc., 589; afE'd 85 App. Div. 507. 24 Hilllard ads. People ex rel. Ochs, 81 App. Div. 71. .43, 72, 81, 82, 85, 85, 87 Huffman ads. People, 24 App. Div. 233 121, 122 Hughes ads. Nostrand, 54 App. Div., 602 54 Hull ads. People ex rel. I^rkln, 23 Misc., 63 132 Kane ads. Lyman, 57 App. Div.; 549 43, 59, 81 Knapp V. Scanlin, 36 Misc., 756 84, 85, 85 Koehler v. Flebbe, 21 App. Div., 210 84 Koenlg ads. People, 9 App. Div., 436 107 Kresser v. Lyman, 74 Fed. Rep., 765 7, 23, 93 Kurmlnsky ads. People, 23 Misc., 504 133 Kurtz ads. Lyman, 166 N. Y., 274 56, 57, 58, 59, 69, 87, 114 Lammerts ads. People ex rel. Sweeney, 18 Misc., 343; aff'd 14 App. Div., 628 ^ 45, 46, 46, 46, 74, 74, 75, 77 Levy ads. People, 24 Misc., 469 127, 128 Lyman ads. Balogli, 6 App. Div., 271 7, 23 Lyman v. Broadway Garden Hotel and Cafe Co., 33 App. Div., 130. ... 60 Lyman v. Brucker, 26 Misc., 594; aflE'd 42 App. Div., 624 56, 58, 114 Lyman v. Cheever, 168 N. Y., 43; rev'g 52 App. Div., 635; aff'g 31 Misc., 100 57, 68, 83, 113 Lyman v. Corey, 28 App. Div., 623 136 Lyman v. Gramercy Club, 28 App. Div., 30 60, 60, 136 Lyman v. Gramercy Club, 39 App. Div., 661 57, 61, 69 Lyman v. Kane, 57 App. Div., 549 43, 59, 81 Lyman ads. Kresser, 74 Fed. Rep., 765 7, 23, 93 Lyman v. Kurtz, 166 N. Y., 274 56, 57, 58, 59, 69, 87, 114 Lyman v. Matty, 35 App. Div., 227 136 Lyman v. Mead, 56 App. Div., 582 59 Lyman v. Oussani, 33 Misc., 409; rev'd 65 App. Div., 27 16, 59, 61 61, 114, 114 Lyman ads. People ex rel. Briggs, 48 App. Div. 484; afiC'd 163 N. Y., 602. 24 Lyman ads. People ex rel. Fallert Brewing Co., 53 App. Div., 470; aff'd 168 N. Y., 669 83, 85, 113 Lyman ads. People ex rel. Lawton, 33 Misc., 243 43, 43, 43, 63 71, 81, 81, 85, 85, 87 Lyman ads. People ex rel. Miller, 156 N. Y., 407; aff'g 27 App. Div., 527 72, 83, 84, 85, 87, 93 Lyinan ads. People ex rel. Ocbs, 25 Misc., 217 85 Lyman ads. People ex rel. Seltz, 59 App. Div., 172; aff'g 32 Misc., 108 82, 83, 83, 85, 85 Lyman ads. People ex rel. Stevenson Brewing Co., 67 App. Div., 446; aff'd 173 N. Y., 605 82, 85, 113 144 Liquor Tax Law. PAQB Lyman ads. People ex rel. Stevenson Brewing Co., 69 App. Div., 406; afe-d 173 N. Y., 60i 82, 83, 85, 113 Lyman ads. People ex rel. Sweet, 157 N. Y., 368; affi'g 30 App. Dlv., 135; afE'g 20 Misc., 80 15 Lyman ads. People ex rel. Weidmann Brewing Co., 69 App. Dlv., 399. . 83 85, 113 Lyman v. Perlmutter, 166 N. Y., 410; afC'g 49 App. Dlv., 630. .56, 56, 59, 114 Lyman v. Ruehl, unreported decision of Gildersleeve, J. S. 61 Lyman v. Schenck, 37 App. Div., 234 56, 56, 59, 60, 114 Lyman v. Schermerhom, 167 N. Y., 113; afC'g 53 App. Div., 32 43, 59 71, 81 Lyman v. Shenandoah Social Club, 39 App. Div., 459 56, 58, 58, 59 60, 60, 60, 61, 114, 114, 114 Lyman v. Siebert, 31 Misc., 285 60 Lyman v. Young Men's Cosmopolitan Club, 38 App. Div., 220 62 McGowan ads. People ex rel. Smaw, 44 App. Div. 30 100 MeGrath ads. Nleland, 29 Misc., 682 97 McNeeley v. Welz, 166 N. Y., 124; aff'g 20 App. Div. 566 , . 84 Macy ads. People ex rel. Hartigan, unreported decision of Longley, Columbia Co. J 42, 63 Markell ads. People ex rel. Shorten, 20 Misc., 149 134 Markowitz ads. People, N. Y. L. J., June 30, 1903 107 Mathusa ads. Niles, 162 N. Y., 546; afe'g 20 App. Dlv., 483; afC'g 19 Misc., 96 43, 81, 84, 84, 87 Matter of Adriance v. Eamage, 50 App. Div., 440 45, 48, 97 Matter of Aldous v. Goodwin, unreported decision of Russell, J. S. C. . 51 Matter of Arnold, 32 Misc., 439 34, 34 Matter of Auerbach v. Johannsen, 31 Misc., 46 96, 102 Matter of Ball v. Olmstead, unreported decision of Stover, J. S. C; afe'd 84 App. Div., 635 .44, 53, 96 Matter of Barnard v. Elvers, 48 App. Div., 423 43, 43, 44, 64, 81 97, 98, 116 Matter of Bertrend, 40 Misc., 536 36, 37 Matter of Bradley v. Hall, 22 Misc., 301 84, 98, 99, 115, 115 Matter of Brewster v. Hillman, 85 App. Div., 235; rev'g 39 Misc., 689. . 44 47, 48, 97, 98, 116 Matter of Bridge v. Mohrmann, 36 App. Div., 533; afC'g 25 Misc., 213 42-43, 44, 46, 49, 52, 63, 96, 97, 98 Matter of Brown v. Bouton, 38 Misc., 157 35, 64, 96 Matter of Campbell v. Robinett, 162 N. Y., 612; afC'g 46 App. Div., 634 95, 95 Matter of Cheney v. Muckey, 35 Misc., 598 44, 52, 97 Matter of Clement v. Wilcox, 29 Misc., 29 35 Matter of Cowles v. Bergln, 34 Misc., 447 48, 54 Table of Cases. 145 FAQB Matter of Oruikshank v. Hesterberg, unreported decision of Gaynor, J. S. C; affd 82 App. Dlv., 645 45, 74 Matter of Cullinan v. Babskl, 40 Misc., 583 95, 95, 101 Matter of Cullinan v. Campbell, 39 Misc., 646 43, 97, 101, 116 Matter of Cullinan v. Flynn, 89 Misc., 558 98, 102 Matter of Cullinan v. Gallagher, 39 Misc., 354 100, 101 Matter of Cullinan v. Hartman, 75 App. Div., 301 115, 119 Matter of Cullinan v. Kray, 82 App. Div., 445 95, 100 Matter of Cullinan v. Kuch, 39 Misc., 641 68, 87, 98, 99, 114 Matter of Cullinan v. Lehr, 40 Misc., 423 95, 101 Matter of Cullinan v. McCue, 39 Misc., 636; afC'd 85 App. Div., — 98 Matter of Cullinan v. Micha, 76 App. Div., 362; afC'd 173 N. Y., 610. .95, 100 Matter of Cullinan v. Neus, N. Y. L. J., August 7, 1903 96, 101 Matter of Cullinan v. Forges, N. Y. L. J., July 22, 1903 115, 119 Matter of Cullinan v. Schepper & Co., 68 App. Div., 119 72, 99, 101, 114 Matter of Cullinan v. Smith, unreported decision of Maddox, J. S. C.24, 98 Matter of Cullinan v. Young, 41 Misc., 3 i 99, 113, 119 Matter of Fall v. Meehan, 26 Misc., 611; afC'd 39 App. Dlv., 671 42, 44 63, 96, 98 Matter of Feist v. Locke, N. Y. L. J., April 6, 1900 51 Matter of Feist v. Locke, N. Y. L. J., April 11, 1900 102 Matter of Flanagan v. Harris, 49 App. Div., 99 45, 96 JIatter of France, 36 Misc., 693 36 Matter of Getman, 28 Misc., 451. 34 Matter of Griffin, 35 Misc., 532 37 Matter of Haight v. Parsell, 59 App. Div., 626; afE'g 33 Misc., 544 45 45, 47, 74, 74, 97, 101 Matter of Halbran v. Canavan, 30 Misc., 515 100, 101 Matter of Halbran v. Donnellon, 30 Misc., 517 99 Matter of Hanson v. Howard, 66 N. Y. Supp., 1133 96, 100 Matter of Harper v. Keller, 30 Misc., 663 44, 47, 96, 97, 98 Matter of Harper v. Keller, N. Y. L. J., October 31, 1899 105 Matter of Hawkins v. Thiel Bros., 165 N. Y., 188 45, 46, 48, 77, 77 97, 97 Matter of Henry v. Moran, 56 App. Div., 268 99, 99, 115 Matter of Holden v. McCusker, 23 Misc., 446 75, 75, 76 Matter of Hunter v. CafCrey, 34 Misc., 389; afC'd 59 App. Div., 626 104 Matter of Hyde v. McAllister, unreported decision of Woodward, J. SC 51 Matter of Ireland v. Messer, unreported decision of Almy, Tompkins Co- J 48, 49, 96, 97 Matter of Jenney v. Manzer, 19 Misc., 244; aff'd 19 App. Div., 627 84 84, 87 10 146 LiQuoB Tax Law. PAGB Matter of Johnson v. Fogarty, unreported decision of Werner, J. S. 44, 51, 52, 96 Matter of Keene v. Toole, unreported decision of McLennon, J. S. C. . 53 Matter of Kessler v. Cashln, 163 N. Y., 205; rev'g 44 App. Div., 635; aff'g 28 Misc., 336 45, 46, 46, 97 Matter of Klnzel v. Malone, 28 Misc., 622 98, 98, 99, 113, 118 Matter of Klevesahl v. Perry, 30 Misc., 361 46, 97 Matter of Krleger, 59 App. Dlv., 346. 35 Matter of Lewis v. PUchen, 26 Misc., 532 74, 74, 75, 76, 97 Matter of Livingston v. Shady, 24 App. Div., 51 94, 96 Matter of Locklin v. Lee, unreported referee's decision; aff'd 47 App. Dlv., 634 ...■ 105, 117 Matter of Locklin v. Woollett, unreported referee's decision; afE'd 47 App. Div., 634 105, 116 Matter of Loper v. Slattery, 165 N. Y., 618; afE'g 53 App. Dlv. 576 45 46, 97, 102 Matter of Loper v. Slattery, 32 Misc., 534 102 Matter of Lord v. Coughlln, 32 Misc., 223 44, 49, 96, 98 Matter of Lyman v. Baldwin, 26 Misc., 568 50, 51, 96 Matter of Lyman v. Bradsted, 26 Misc., 629 24 Matter of Lyman v. Clancy, 34 Misc., 296 49, 96, 99 Matter of Lyman v. Crowley, 62 App. Div., 616 99, 99 Matter of Lyman v. DiefCenbacker, 25 Misc., 638 99, 112 Matter of Lyman v. Erie County Athletic Club, 46 App. Div., 387; aff'd 163 N. Y., 552 43, 95, 95, 97, 119 Matter of Lyman v. Fagan, 26 Misc., 300 t.. .68, 83, 84, 87, 98, 99, 113 Matter of Lyman v. Fuhrmann, 34 App. Div., 389 77, 97 Matter of Lyman v. Garrison, 24 Misc., 552 44, 46, 52, 52, 96 Matter of Lyman v. Gramercy Club, 28 App. Div., 209 99, 99, 99 113, 119 Matter of Lyman v. Korndorfer, 29 App. Dlv., 390 74, 77, 97 Matter of Lyman v. Malcom Brewing Co., 161 N. Y., 119; 160 N. Y., 96; afC'g 40 App. Div., 46 24, 94, 94, 95, 95 Matter of Lyman v. Maloney, 28 Misc., 385; afC'd 53 App. Div., 330 68, 83, 85, 98, 99, 101 Matter of Lyman v. Monahan, 48 App. Div., 275; afC'g 28 Misc., 408 75 97, 100, 102 Matter of Lyman v. Murphy, 33 Misc., 349 44, 44, 49, 49, 96, 98 98, 99, 101 Matter of Lyman v. Scharmann, 32 Misc., 621 100 Matter of Lyman v. Speidel, 163 N. Y., 536; rev'g 51 App. Div., 52. .96, 100 Matter of Lyman v. Texter, 59 App. Div., 217; aff'g 32 Misc., 210 24 68, 68, 71, 81, 82, 83, 83, 85, 87, 95, 98, 98, 98, 99, 113 Table of Cases. 147 PAGB Matter of Lyman v. True Friends Social and Literary Circle, N. Y. L. J., December 8, 1897 42, 63, 99, 99, 100, 113, 119 Matter of Lyman v. Veeder, 29 Misc., 524 98, 99. 113 Matter of Lyman v. Wells, 28 Misc., 278 35, 64, 96, 101 Matter of Lyman v. Young Men's Cosmopolitan Club, 28 App. Div., 127 99, 99, 99, 100, 113, 113, 119, 119 Matter of Lyman v. Young Men's Cosmopolitan Club, N. Y. L. J., June 30, 1897 94 Matter of McCusker v. McCusker, 47 App. Div., Ill 74, 75, 75, 97, 99 Matter of MacVicker v. Eiley, 21 Misc., 883 44, 48, 52, 96 Matter of Michell v. James, 41 App. Div., 271 68, 83, 84r-85, 87, 98 98, 99, 113 Matter of Moser v. Scheib, 16 App. Div., 379 101 Matter of Moulton v. Acconcia, 59 App. Div., 25; aff'd 168 N. Y., 645 47, 47, 48, 76, 76, 77, 97, 97, 101 Matter of O'Hara, 40 Misc., 355 36, 36, 36, 64 Matter of O'Hara, 63 App. Div., 512 35 Matter of Peck v. Cargill, 167 N. Y. 391 95, 100 Matter of Pierson v. Eeigel, 32 Misc., 293 47, 97, 101 Matter of Place v. Matty, 156 N. Y., 691; afC'g 27 App. Div., 561 47 74, 74, 76, 77, 77, 97, 97, 116 Matter of Plass v. Clark, 71 App. Div., 488; afC'd 175 N. Y., 524. .99, 100 115 Matter of Powers, 34 Misc., 636 36 Matter of Purdy v. Driscoll, 40 App. Div., 133 44, 44, 53, 97, 116 Matter of Rasquin v. Hennin, 37 Misc., 693 43, 44, 50, 96, 97, 102 Matter of Rogers, Misc., 35, 35, 64 Matter of Rowley, 34 Misc., 662 .36, 93 Matter of Ruland v. Considlne, 21 Misc., 504 50, 52, 96 Matter of Russell v. Noonan, unreported decision of Stover, J. S. C. . 50 Matter of Ryon v. Auchmoody, 39 Misc., 698; aff'd 85 App. Div., 43, 43, 97, 98, 99, 115, 116 Matter of Saunders v". Garnsey, unreported decision of Nash, J. S. C; aff'd 61 App. Div., 612 44, 97, 116 Matter of Saunderson v. Crane, 34 Misc., 375 45, 52, 96 Matter of Schuyler v. Rorphuro, 63 App. Div., 206 99, 99, 100, 113 113, 116, 118 Matter of Schuyler v. Ryan, 32 Misc., 221 100, 100 Matter of Selig v. Buckley, unreported decision of Garretson, J. S. C '. 54, 96 Matter of Seymour v. Van Evera, 47 App. Div., 320 27 Matter of Sherry v. Van Ausdall, 25 Misc., 361 49, 97 Matter of Sullivan, 34 Misc., 598 36 Matter of Sullivan, 30 Misc., 682; afC'd 52 App. Div., 634 36 Matter of Tonatio v. Deperino, 49 App. Div. 84 49, 63, 96, 97 148 Liquor Tax Law. PAGE Matter of Vail v. Lennon, 38 Misc., 392 44, 45, 52, 74 Matter of Van Vleck v. Coonan, N. Y. L. J., Mch. 27 1900 4S Matter of Veeder v. Miller, 31 Misc., 569 45, 50, 52, 95 Matter of Washburn v. Delia Morte, 32 Misc., 303 96, 102 Matter of Wicker v. XJnderhill, 17 Misc., 19 45, 53, 96 Matter of Woolston, 35 Misc., 735 36, 36 Matter of Zinzow v. Schmidt, 18 Misc., 653 74, 74, 75, 75, 77, 77, 97, 102 Matty ads. Lyman, 35 App. Div., 227 136 Mead ads. Lyman, 56 App. Div., 582 59 Mehling ads. Guth, 84 App. Div., 586 54 Mein ads. People ex rel. Narrow, 66 App. Div., 615 35 Michell ads. People ex rel. Reusse, unreported decision of Dickey, J. S. C 53 Mosso ads. People ex rel. Caffrey, 30 Misc., 164 34 Mulkins ads. People, 25 Misc., 599 134 Murray ads. People ex rel. Einsfeld, 149 N. Y. 367; affi'g 4 App. Div., 185 6, 23, 27, 93 Nieland v. McGrath, 29 Misc., 682 97 Niles V. Mathusa, 162 N. Y. 546; afC'g 20 App. Div., 483; aff'g 19 Misc., 96 43, 81, 84, 84, 87 Nostrand v. Hughes, 54 App. Div., 602 54 Olpese ads. People, 41 Misc., 102 124 Oussani ads. Lyman, 33 Misc., 409; rev'd 65 App. Div., 27 16, 59, 61 61, 114, 114 Parker ads. CuUinan, 39 Misc., 446; aff'd 84 App. Div., 296 57, 58, 61 69, 87, 114 Parmelee ads. People ex rel. Decker, 22 Misc., 380 35 People V. Andrus, 74 App. Div. 542 106, 122, 12^ People V. Bagley, 41 Misc., 97 112, 125, 128 People V. Bates, 61 App. Div., 559 122 People V. Boudouin, 19 Misc., 665 127 People V. Brede, unreported decision of Sutherland, Monroe Co. J. . . . 113 116, 117, 121, 137 People V. Clark, 61 App. Div., 500 113, 114, 116, 122, 122 People V. Cornyn, 36 Misc., 135 127, 128 People V. Grotty, 22 App. Div., 77 113, 114, 116, 121-122 People V. Dippold, 30 App. Div., 62 114, 122 Psople V. Ferranto, unreported decision of Sutherland, Monroe Co. J. . 121 People V. Haren, 35 Misc., 590 113, 114, 116, 121. 121, 122 People V. Hayes, 28 Misc., 93 126 People V. Huffman, 24 App. Div., 233 121, 122 People V. Koenig, 9 App. Div., 436 107 People V. Kurmlnsky, 23 Misc., 504 133 People V. Levy, 24 Misc., 469 127, 128 Table of Cases. 149 PAQB People V. Markowitz, N. Y. L. J., June 30, 1903 107 People V. Mulkins, 25 Misc., 599 134 People V. Olcese, 41 Misc., 102 124 People V. Satchwell, 61 App. Div., 312 122 People V. Schmidt, 19 Misc., 458 121 People v. Simnacher, 68 App. Div., 650 122 People V. Wade, 26 Misc., 585 127, 128 People V. Weir, unreported decision of Arms, Broome Co. J 137 People V. Werner, 174 N. Y., 132 106, 122 People V. Wolf, 24 Misc., 94 : 127, 127 People V. Wolf, N. Y. L. J., July 3, 1903 128 People ex rel. Bagley v. Hamilton, 25 App. Div., 428; rev'g 21 Misc., 375 74, 74, 77, 77, 93 People ex rel. Belden Club v. Hilliard, 28 App. Div., 140; aff'g 50 N. Y. Supp., 909 42, 43, 63, 63, 93 People ex rel. Briggs v. Lyman, 48 App. Div., 484; aff'g 163 N. Y., 602 24 People ex rel. Caffrey v. Mosso, 30 Misc., 164 34 People ex rel. Caldwell v. Wood, unreported decision of Dwight, J. S. C 125 People ex rel. Clint v. Hamilton, 27 Misc., 360 37, 64, 93 People ex rel. Crane v. Chandler, 41 App. Div. 178 36 People ex rel. Decker v. Parmelee, 22 Misc., 380 35 People ex rel. Einsfeld v. Murray, 149 N. Y., 367; aff'g 4 App. Div., 185 6, 23, 27, 93 People ex rel. Fallert Brewing Co. v. Lyman, 53 App. Div., 470; aff'd 168 N. Y., 669 83, 85, 113 People ex rel. Fisher v. Hasbrouck, 21 Misc., 188 35, 64, 93 People ex rel. Frank Brewery v. CuUinan, 168 N. Y., 258 71, 82, 83 85, 85, 124 People ex rel. Gray v. Hilliard, N. Y. L. J., Nov. 30, 1896 82 People ex rel. Gress v. Hilliard, 40 Misc., 589; aff'd 85 App. Div., 507 24 People ex rel. Guernsey v Pierson, 35 Misc., 406; aff'd 64 App. Div., 624 37, 37 People ex rel. Hartigan v. Macy, unreported decision of Longley, Columbia Co. J 42, 63 People ex rel. Hickok v. Coonley, unreported decision of Andrews, J. S. C 42, 48, 63 People ex rel. Hupfel's Sons v. Oullinan, N. Y. L. J., June 18, 1903 82 82, 85 People ex rel. Larkin v. Hull, 23 Misc., 63 132 People ex rel. Lawton v. Lyman, 33 Misc., 243 43, 43, 43, 63 71, 81, 81, 85, 85, 87 150 Liquor Tax Law. PAGE People ex rel. Leonard v. Hamilton, 42 App. Dlv., 212; afC'g 27 Misc., 308 35, 37, 64, 93 People ex rel. Miller v. Lyman, 156 N. Y., 407; afC'g 27 App. Dlv., 527 72, 83, 84, 85, 87, 93 People ex rel. Narrow v. Mein, 66 App. Dlv., 615 35 People ex rel. Ochs v. Hllliard, 81 App. Div., 71 43, 72, 81, 82, 85, 85, 87 People ex rel. Ochs v. Lyman, 25 Misc., 217 85 People ex rel. Keusse v. Michell, unreported decision of Dickey, J. S. C 53 People ex rel. Richardson v. Sackett, 17 Misc., 405 71 People ex rel. Bichardson v. Sackett, unreported decision of Russell, J. S. C 37, 72 People ex rel. Sandman v. Brush, 41 Misc., 56 47 People ex rel. Sandman v. Tuthill, 79 App. Div., 24 126 People ex rel. Schuler v Schatz, 50 App. Div., 544 126, 126 People ex rel. Seitz v. Lyman, 59 App. Div., 172; aff'g 32 Misc., 108 82, 83, 83, 85, 85 People ex rel. Shortell v. Markell, 20 Misc., 149 134 People ex rel. Smaw v. McGowan, 44 App. Dlv., 30 100 People ex rel. Smith v. Foster, 27 Misc., 576 35, 35, 37, 64, 93 People ex rel. Smith v. Hamilton, 29 Misc., 465 35, 64, 93 People ex rel. Stevenson Brewing Co. v. Lyman, 67 App. Div., 446; aff'd 173 N. Y., 605 82, 85, 113 People ex rel. Stevenson Brewing Co. v. Lyman, 69 App. Div., 406; afC'd 173 N. Y. 604 82, 83, 85, 113 People ex rel., Sweeney v. Lammerts, 18 Misc., 343; aff'd 14 App. Div., 628 45, -46, 46, 46, 74, 74, 75, 77 People ex rel. Sweet v. Lyman, 157 N. Y., 368; att'g 30 App. Div., 135; aflC'g 20 Misc., 80 15 People ex rel. Taylor v. Ely, unreported decision of Keneflck, J. S. C. . 38 People ex rel. Town of Plattsburgh v. Williams, 162 N. Y., 240; rev'g 47 App. Div., 88; rev'g 29 Misc., 463 28 People ex rel. Weidmann Brewing Co. v. Lyman, 69 App. Div., 399 83 85, 113 People ex rel. Wood v. Town Canvassers, 32 Misc., 131 37 Perlmutter ads. Lyman, 166 N. Y., 410; aff'g 49 App. Div., 630 56 56, 59, 114 Pierson ads. People ex rel. Guernsey, 35 Misc., 406; afC'g 64 App. Div., 624 37, 37 Richter ads. Wllking, 25 Misc., 735 115 Ruehl ads. Lyman, unreported decision of Gildersleeve, J. S. G 61 Sackett ads. People ex rel. Richardson, 17 Misc., 405 71 Sackett ads. People ex rel. Richardson, unreported decision of Russell, J. S. C 37, 72 Table op Cases. 151 PAOE Saekett ads. Scalzo, 30 Misc., 543 23, 42, 81, 93 Satchwell ads. People, 61 App. Div., 312 122 Scalzo V. Saekett, 30 Misc., 543 23, 42, 81, 93 Scanlin ads. Knapp, 36 Misc., 756 84, 85, 85 Sphatz ads. People ex rel. Schuler, 50 App. Div., 544 126, 126 Schenck ads. Lyman, 37 App. Div., 234 '. 56, 56, 59, 60, 114 Schermerhorn ads. Lyman, 167 N. Y. 113; aff'g 53 App. Div., 32 43 59, 71, 81 Schmidt ads. People, 19 Misc., 458 121 Shea V. Fidelity and Causalty Co., 83 App. Div., 305; rev'g 39 Misc., 107 58 Shenandoah Social Club ads. Lyman, 39 App. Div., 459 56, 58, 58 59, 60, 60, 60, 61, 114, 114, 114 Sherry ads. Ging, 32 App. Div., 354 27 Siebert ads. Lyman, 31 Misc., 285 60 Simnacher ads. People, 68 App. Div., 650 122 Stein ads. Cullinau, 84 App. Div., 292 24, 43, 58, 61, 114 Town Canvassers ads. People ex rel. Wood, 32 Misc., 131 37 Trolley Club ads. Cullinan, 65 App. Div., 202 16, 60, 61, 113, 114, 119 Tuthill ads. People ex rel. Sandman, 79 App. Div., 24 126 Union Surety and Guaranty Co. ads. Cullinan, 79 App. Div., 409 27 Wade ads. People, 26 Misc., 585 127, 128 Weir ads. People, unreported decision of Arms, Broome Co. J 137 Welz ads. McNeeley, 166 N. Y., 124; aff'g 20 App. Div., 566 84 Werner ads. People, 174 N. Y., 132 106, 122 Wilting V. Richter, 25 Misc., 735 115 Williams ads. People ex rel. Town of Plattsburgh, 162 N. Y., 240; rev'g 47 App. Div., 88; rev'g 29 Misc., 463 28 Wolf ads. People, 24 Misc., 94 127, 127 Wolf ads. People, N. Y. L. J., July 3, 1903 128 Wood ads. People ex rel. Caldwell, unreported decision of Dwight, J. S. C 125 Young Men's Cosmopolitan Club ads. Lyman, 38 App. Div., 220 62 INDEX TO LIQUOR TAX LAW. Page references to notes are followed by letter Page references to statute are not. Abandonment of: ^^°^ hotels near dwellings 47n-48n hotels near churches and schoolhouses 76n liquor stores near dwellings 46n-47n liquor stores near churches and schoolhouses 77n Accomplices : special agents are not 15n-16n, 61n Accounts of county treasurers: certified to Comptroller 9 examined by State Commissioner 9 how kept 29 See also Special Deputy Commissioners. Action for civil damages: by and against whom brought 133 Action for penalties, against: public officer, brought by State Commissioner 185 public officer, money recovered in, payable to whom 135 violators, concurrent remedy for certain offenses 135 violators, money recovered in, payable to whom 135 violators, where brought and maintained 135, 136n See also Civil penalties; Action on liquor tax bond. Action for penalty and excise moneys: against county treasurer who refuses to account for latter 26-27 Action on bond of depository of excise taxes: by State Commissioner ; 26, 27n Miction on liquor tax bond: bankruptcy of principal, no defense to surety 61n civil action on contract 60n complaint in 60n costs in 62n for full penalty, judgment, fine or penalty, when maintainable. . 55 5en-57n proof in 60n-61n 154 Liquor Tax Law. Action on liquor tax bond — Concluded. paqb surety entitled to separate representation at trirJ of 61n verdict, when directed in 61n where and by whom brought and maintained 55, 60n See also Liquor tax bonds. Administrator, see Executor. Adulterated liquors: sale of, prohibited 107 Agent: conviction of, deprives employer of right to traffic, how long. ... 70 conviction of, forfeits employer's certificate, when 82n, 124 liability of, criminally, for violation 120-121 violation by, when ground for cancellation proceedings 88, 98n See also Special Agent. Alcohol: certificate for traflSc in, only 20 sale prohibited during certain hours by dealers In alcohol only. . 20 when salable by pharmacist without prescription 18 All-night certificates 112 Alternative sentence upon conviction: when mandatory 124 Amendatory acts 138n-139n Application statement for liquor tax certificate: applicant bound by his statements in 43n-44n applicant responsible for statements in .- 43n assignee must file new, to complete transfer 84n, 86, 87n blanks prepared by State Commissioner 28 blanlis supplied to applicants, by whom 38 cancellation of certificate for false statement in 43n, 88, 96n-98n county treasurer bound by statements in 42n, 62n-64n dwelling owners' consents filed simultaneously with 40, 49n effect of false statement In, not overcome by subsequent com- pliance 43n endorsement, form of 41-42 endorsement upon, prima facie evidence of what 42 executor continuing traffic of testator must file 80 filed in office of county treasurer or Special Deputy Commis- sioner, except upon common carrier's traffic 38, 41, 62 form of 65-66 good faith, no defense for maliing false statement in 44n issuance of certificate depends upon sufficiency of . . . .42n, 62, 62n-64n liquor store owners' consent filed simultaneously with 40, 53n-543 must be correct in form 42n, 62, 62n-64n must be signed and sworn to 38 must show applicant's legal right to traffic 42n, 62, 62n-64n Index. 155 Application statement for liquor tax certificate — Concluded. page penalty for making false statement in, civil 43n, 88, 96n-98n, 103 penalty for making false statement in, criminal 123-124 penalty for neglect to make 123 public record, when filed 29 receiver continuing traffic of certificate holder must file 80 refusal to issue certificate upon, duty of officer upon 87-88 refusal to issue certificate upon, ground for 62, 62n-64n refusal to issue certificate upon, remedy for 87-88, 92n-93n required of every dealer trafficking in liquor 88, 42n right to traffic depends on compliance with statute as stated in. . 43n statements contained in, presumed to be true 42n, 62n-64n statements required of common carrier in 41 statements required of hotel keeper in 41, 116n statements required of pharmacist in 41 transfer of certificate from place to place requires new 85 transferee of certificate must file new 86 Arrest: duty of district attorney to cause, when 131 for public intoxication, without warrant 133 magistrate may issue warrant of, upon information 125, 126n Assignee of certificate: for collateral security, may apply for rebate 78, 83n rights of, as against other claimants 83n-84n rights of, as against the State 84n for transfer, must file application, bond, etc 84n, 86, 87n for transfer, rights and liabilities of 84n, 87n Association.: definition of 5 when barred from traffic 69-71 Attorneys : appointment of, to assist district attorneys 14 employment of, by State Commissioner 14 Bail: amount of, required by examining magistrate 125 commitment by magistrate in default of 125 Ballots, see Local option questions. Bank, see Depositories, Bar: separate certificate required for each 20-21, 24n Barroom : closed during prohibited hours 108, 114n-115n hotel keepers not to sell liquors in, during prohibited hours 110 liquor tax certificate must be posted in 67 68n minors under 16 years not permitted in 107n 156 Liquor Tax Law. Barroom — Concluded. paqb screens in windows of, when prohibited 108, 115n time for closing 137n who may enter during prohibited hours 108 Bartender, see Agent. Bedrooms: hotel, requirements of Ill, 116n-117n serving liquor to guests in their 110 Beer: what, is liquor 6n Biennial town meeting: duties of town clerk in submitting local option questions at 31-34 36n-37n local option questions, when resubmitted at 32-33 submission of local option questions at, permitted only on proper petition 31, 34n, 35n See also Local option questions; Local option. Boarders: report of certificate holders to State Commissioner showing record of 119 Boarding house: is not a hotel 47n may be a dwelling , 50n Boards of excise: abolished 6 duties of 7-8 records and reports of 7-8 Boat, see Common carrier. Bonds of: banl£S or depositories receiving excise money 26, 27n citizen petitioner in cancellation proceeding 91 Deputy State Commissioner of Excise 10 financial clerk 11 Second Deputy State Commissioner of Excise 10 special agents 13 Special Deputy Commissioners of Excise 11 State Commissioner of Excise 8 See also Liquor tax bonds. Boroughs in ITew York City: Special Deputy Commissioners for 11 taxes upon traffic in 22-23, 24n Bottled malt liquors: certificate for traflSc in. Issued by whom 20 traffic in from vehicle 19-20 Index. 157 Box: PAGE inclosed, prohibited in barroom 109 Bronx, The, Borough of: Special Deputy Commissioner for 11 tax rate in 24n Brooklyn, borough of: Special Deputy Commissioner for 11 Cancellation proceedings : against whom brought 88-89, 96n answer to petition in 90, 95n-96n appointment of referee in 90, 96n-101n bond action not a bar to. lOOn by whom brought 88 citizens must obtain State Commissioner's consent 89 compromise, settlement or discontinuance of, out of court, pro- hibited 91-92 consequences of 70, 71n, 90 constitutionality of 93n-96n conviction not condition precedent to 90, 9-in-95n costs discretionary in 91, 101n-102n costs awarded against petitioner or certificate holder in 91 costs, security for, upon gi'anting injunction restraining traffic. . 91 county clerk must report the filing of papers in 129 discharge in criminal proceedings not a bar to lOOn discontinuance of, must be for sufficient cause and so recited. ... 92 discontinuance of, only on motion of petitioner 102n disobedience of injunction orders, contempt of court 91 evidence necessary in 97n, 99n expiration of certificate does not abate lOOn final hearing on referee's report without opinion 90 grounds for 88, 96n-100n injunction proceeding not barred by 105n injunction restraining traffic during pendency of, when granted. . 91 injunction restraining transfer or surrender of certificate 89 liability of certificate holder In, for acts of servants 88, 98n neglect to surrender cancelled certificate contempt of court 91 notice of application for discontinuance, to all parties, neces- sary 91_92 order revoking certificate must direct its surrender 90 order revoking certificate must be granted if evidence warrants . . 90 97n, 99n order revoking certificate takeST'efEect upon entry and service. .90, 102n order to show cause, granted on petition 89 order to show cause, how served 89^ lOln order to show cause, when returnable 89, lOOn 158 LiQUOK Tax Law. Cancellation proceedings — Concluded. paqb penalty for compromising pending or threatened 92 petition, form of 89, lOOn rebate withheld on involuntary surrender, pending 92 rebate withheld on voluntary surrender, before or during. .78-79, 92 referee appointed to talie testimony 90, 96n, lOln security for costs and damages upon granting of injunction in.. 91 State Commissioner entitled to service of all papers and notice of all proceedings 89, 92 State Commissioner shall be made a party to 9, 89 stay pending appeal in 102n surrender of certificates permitted during pendency of 89, 92 surrender of certificate required under Injunction order 91 trial by jury not a constitutional right in 94n-95n verified petition, basis of 89 who may bring 88 Cancellation, surrender of certificate for, see Rebate. Car, see Common carrier. Cards : gambling with prohibited 58n Cemetery: traffic in prohibited 73 Census, State: population as shown by, controlling excise taxes generally 21 Census, United States: originally secondary basis of population 21 recent, increased and decreased tax rate 22 Certificate, see Liquor tax certificate. Certiorari proceedings: to compel issuance and transfer of certificates 87-88, 92n-93n Cessation of trafflc: condition prec-edent to payment of rebate 78, 82n surrender of certificate without, ground for cancellation proceed- ings 83n Charitable institutions : traffic near, restricted .' 72 Chief of police: may permit issuance of all-night certificates in cities 112 See also Police. Church: building used exclusively as a 74n-75n exception favoring established hotels near 73, 76n exception favoring established liquor stores near 73, ^6n-77n provisions relating to traffic near, how construed 74n traffic in liquor to be drunli on premises near, restricted 73, 73n-77n when on same street with place of traffic 75n Index. 159 Cities: paqh excise taxes In, rate of 16-23 excise taxes in, distribution of 25-26 hotels in and near, requirements for. 110 rebates payable in part by 78-79 situate in any county, fix rate of its county treasurer's fees 28 special all-night certificates in 112 Citizen: having Icnowledge may cause arrest of violator " 126n may bring cancellation proceedings with required consent 88-89 may bring injunction proceedings, if taxpayer 103 may prefer charges against public oflBcer for neglect of duty. . . . 133 reputable, may report violations to district attorney 131 required to give bond if injunction is granted in cancellation pro- ceeding 91 trafiic in liquor permissible only by - 69, 72n Civil damages: recoverable by and against whom 133 Civil penalties: action for, by State Commissioner, for certain offenses 134-135 cancellation proceeding for false statement or any violation 43n 88, 96n-100n for disobeying order to surrender cancelled or forfeited certifi- cate 91, 135 for disobeying order restraining traffic and directing surrender of certificate 91 for refusal to properly distribute excise taxes 26-27 for taking security on liquor debt 120 public officers liable to, for neglect of duty 26-27, 133 See also Liquor tax bonds. Clerical force: in office of State Commissioner 11 Clerk, see Agent; County clerk. Clubs: distribution of liquor by, taxable ." 5 exception favoring, during prohibited hours, matter of defense. . 119n exception permitting traffic between members during prohibited hours, by certain 111-112 may lose right to exceptional privileges 70-71, 119n premises occupied by certain, when subject to inspection 132 Collateral security, assignment of certificate for, see Assignee of certificate. Commissioner of Excise, see State Commissioner of Excise; Deputy State Commissioner; Second Deputy State Commissioner; Special Deputy Commissioner. 160 Liquor Tax Law. Commoii carrier: pagb application statement for certificate by 41 certificate of, Issued by State Commissioner 62 employment of Intemperate employees by, after notice 134 foreign corporation acting as, or operating dining cars, permitted to traffic 70 posting certificate and transfer permit 67 tax upon traffic by 19 traffic by, restricted to passengers In transit 109 transfer of certificate Issued to 70 Compensation of: attorneys of Department 14 attorneys assisting district attorneys 14-1& County Clerlss 131 County Treasurers 2S See also Salaries. Com.plaints: dismissed by grand jury, report of 132. duty of certain officers to make 131 rebate withheld pending determination of 78-79, 83a to district attorney, when, how and by whom made 131 Com.ptrolIer: accounts of County Treasurers certified to & audits certain expenses 10, 12 bonds of officials filed with 13 check for rebate countersigned by 79, 92 Consent: of custodian of public property for traffic 40- of dwelling owner for traffic, by whom executed 49n exception favoring established hotels 47n exception favoring established liquor stores 46n exception favoring holders of unlimited consents previously given 48b failure to file, sufficient ground for cancellation proceed- ings 88, 96n-97Q good faith not a substitute for compliance with statute re- garding 44d is unlimited unless given for stated term 48n object of general requirements for 45n provisions requiring 40' purpose of exceptions to general requirements for 45n reference to previous application statement containing un- limited 49n required to be filed simultaneously with application state- ment 49b Index. 161 Consent — Concluded. page revocation of 48n-49n, 63n of owner of place of traffic 40, 53n-54n of State Commissioner to begin cancellation proceedings 89 to transfer certificate, certiorari to compel 87-88 from person to person, required 84n, 86, 87n from place to place, required 85-80 to personal or official representatives 79-80 County Treasurer to indorse on certificate 80, 86 Constable: must report violations to district attorney 131 Constitutional: cancellation proceedings, general provision for 93n-96n excise taxes, levy and distribution of 23n, 27n termination of old licenses 7 Contempt of court: failure to observe Injunction order in cancellation proceedings. . 91 failure to surrender forfeited certificate 91 Continuous occupancy: of hotel near church or schoolhouse 39, 76n of hotel near dwellings. 39, 47n-48n of place of traffic near church or schoolhouse 39, 76n-77n of place of traffic near dwellings 39, 46n-47n of place of traffic near dwellings since obtaining unlimited con- sents 41, 48n Convicted violator: forfeits all certificates 71n, 83n, 123 may not act as surety on liquor tax bond 124 may not hold certificate for three years 69 must have no interest in liquor business, for how long 124 Conviction: not condition precedent to maintain cancellation proceed- ^^Ss 90, 94n-95n not condition precedent to bond action 55 of pharmacist, forfeits board of pharmacy license 123 penalties on, at Special Sessions in New York City 123-24, 127 report of, to county clerk by court officers 128-29 report of, to State Commissioner by county clerk 130 See also Convicted violator; Criminal Penalties. Copartnea^ship : citizenship of members, to permit traffic by 70 72n liable for violation of member y2n 120 Corporation: foreign, when barred from traffic , _ ^q officers of, liable for violation by j2o 11 162 LiQiroB Tax Law. Costs: PAOB for collection of fines and penalties 129-130 in cancellation proceedings, amount of, discretionary 91, 101n-102n in injunction proceedings, amount of, discretionary 104 security for, when required in citizens' cancellation proceedings. . 91 Ctounty Clerk: convictions must be immediately reported to 128-129 fees for making report and furnishing records to State Com- missioner 131 must issue execution upon unsatisfied judgments for fines 129 must make monthly report of indictments, convictions, etc., to State Commissioner 130 County Court, see Courts. County Treasurer: accounts and records to be kept by, under State Commissioner of Excise 30 application statements for certificates except comrnon carriers' and vehicle, filed with 38, 62 approval of liquor tax bonds by ". 62 blank application statements and bonds furnished applicants by. 38 blanks furnished to, by State Commissioner 28 bond filed simultaneously with application statement and pay- ment of tax 54, 62 bound by statements in application 42n, 62n-64n, 92n cannot determine whether consents have been properly re- voked 48n, 63n certiorari to review refusal of, to issue or transfer certifi- cates 87-^8, 92n compensation of, deducted from excise taxes 28 distribution of excise taxes and fines/ by 25-26, 27n-28n duty, liable for neglect of 26-27, 133 duty, special agent may perform 12 duty, in issuing certificates, ministerial 42n, 62n-64n, 92n duty, in transferring certificates 79-80 86 duty, on refusal to issue or transfer certificates 87-88 duty, on surrender of certificates for rebate 77r^l endorsement of application statements by 41-42 examination of applications and bonds by 62 excise taxes except upon common cai-riers' and vehicle traflBc payable to 25, 62 fines payable to 25, 129, 130 forfeited certificates should be surrendered to 90, 123, 124, 135 liquor tax certificates except for common carriers' and vehicle traffic, issued by 62, 112- Index. 163 County Treasurer — Concluded. faqs must issue certificates only in accordance with local option .... 32-33 62, 64n rebate, application for, should be made to 78 rebate orders received from State Commissioner, delivered by. . . 79 reports of, to State Commissioner 30 satisfaction of judgment for fine, delivered by 129 special all-night certificates issued by 112 Courts, jurisdiction of, in: bond actions ■ 55, 60n cancellation proceedings 89, 93n-96n certiorari proceedings 88 criminal proceedings, in New York City 127, 127n-128n criminal proceedings outside of New York City 125 injunction proceedings. 103 penalty actions 135 Credit: purchase price of liquor sold on, not recoverable 120 Criminal penalties: for compromising pending or threatened cancellation proceed- ings 92 for making false statement in application for certificate.. 123 for neglect to keep record or furnish report of guests 120 for procuring liquor for prohibited persons 134 for public intoxication 133-134 for trafficking contrary to local option vote 68, 123 for trafficking without certificate 123 for violations generally 12^-124, 124n-125n imposed at Special Sessions in New York City, how 123-124, 127 persons liable for, generally 120-121 Curtains, see Screens. in citizens' cancellation proceedings, bond to secure certificate holder from 91 See also Civil damages. Debt: for liquor, when uncollectible 120 Defense: privileges of hotel keepers, pharmacists and clubs to be pleaded and proven In 113n, ii6n, 119n, 121n Definitions: association 5 cliurch 74n-75n ^^e"i°& 49D-52n entrance 52n^3n 164 LiQTJOE Tax Law. Definitions— Concluded. ^■*^°^ guest • ■ • -111, 117n-lia hotel 110-111, 116n-117n liquors 5, 6n meal 117n-119 person • & schoolhouse 75n subsistence 5 trafficking in liquors 5 Delivery of liquors: in no-license towns 20, 10& Depositories of excise moneys: designated by State Commissioner 26 interest on deposits in 30 liable for all defaults 26, 27n must give bond 26 separate account in 30 Deputy sIierifE: must report violation to district attorney 131 Deputy State Oommissioner of Excise: bond of 10 may bring cancellation proceedings 88 may bring injunction proceedings 103 powers of, in absence of State Oommissioner 10 salary and expenses of 10 See also Second Deputy Commissioner of Excise. Detectives: special agents are not T 16n, 61n Dining car see Common carrier. Dining room.: hotel requirements of Ill Discretion in: discontinuing cancellation proceedings, upon proper application, courts exercise 92 granting costs in cancellation or Injunction proceedings, courts exercise 91, 101n-102n Injunction proceedings, courts exercise 103 Issuing certificates, County Treasurers' have no. .42n, 62, 62n-64n, 92n Issuing duplicate certificates, State Commissioner exercises 67 restraining traffic pending cancellation, courts exercise 91 revoking certificates, courts have no power to exercise 90, 97n Disorderly premises: bond conditioned against 65, 58n keeper of cannot traffic In liquors 71 prohibited 108, 114n Index. 165 Distance, see Prohibited distances. PAan Distribution of excise taxes: method of 25-26, 27n-28n District attorney: arrest and examination of violators before magistrate by, when 131 attorney appointed by State Commissioner to assist 14 dismissal of indictments on motion of 132n-133n duty of, to prosecute violators 131-132, 132n duty of, in New York City counties 127, 127n evidence of violations reported to, must be presented to grand jury 131-132 must file report of complaints dismissed by grand jury 132 violations may be reported to, by any reputable citizen 131 Druggist, see Pharmacist. Drugs: liquor to be drunk on premises not to be sold with. 69 Drunkard: liquor must not be sold or given to habitual 105 Dry goods: liquor to be drunk on premises must not be sold with 69 Duplicate certificate: may be Issued by State Commissioner 67 Duties of: boards of excise to report to State Commissioner 7-8 certificate holder concerning trafl5c under his certificate. .68n-69n, 87n county clerk to keep records and make report to State Com- missioner 128-131 County Treasurer, relative to: application statements 38, 62 bonds 62 certificates, issuance of 42n, 62, 62n-64n, 92n, 112 certificates forfeited 91, 123, 124, 135 certificates, surrender of 77-81, 85n certificates, transfer of 79-80, 86 reports and records » 30 taxes, collection of 25 taxes, deposit of 26, 30 taxes, distribution of 25-26, 27n-28n, 30 courts, to report arrest and detention of violators 125-127 to report conviction 128-129 to revoke certificates, when. 43n, 90, 97n-99n criminal authorities, relative to prosecutions 131-132 district attorney, in criminal prosecutions 527, 131-132, 132n 166 LiQUOK Tax Law. Duties of— Concluded. p-*^ob special agents, to investigate under direction of State Com- missioner 13-14, 15n-16n Special Deputy Commissioner, see County Treasurer. State Board of Pharmacy to revoke license of convicted mem- ber 12a State Commissioner of Excise, relative to: accounts of County Treasurers 9, 26, 28-30 appointments 8-15 blanks and record books 28 complaints to Ipe forwarded to district attorneys 13-14: depositories of excise moneys 26 enumeration of certain places 21-23 issuance of certificates 18-19, 62 payment of excise taxes and penalties to State Treasurer. . . 19 25, 55, 135 payment of rebates ,. .79, 81n-85n, 92 satisfaction of judgment for fines paid 130 transfer of common carrier certificates 70 State Comptroller, to audit certain expenses 10, 12 State Comptroller, to countersign rebate cheeks 79, 92 State Treasurer, to pay half of certain salaries and expenses. ... 12 State Treasurer, to receive moneys to credit of general fund. .25, 30 Dvirellings : building used exclusively as 40, 49n-52n provisions relating to, how construed 45n-46n See also Consent; Entrances; Prohibited distances. Election day: traffic in liquor on, near polls, prohibited 107 Employe, see Agent. Employer: of convicted violator, shall not traffic in liquor for how long. ... 70 Endorsement of: application statements, prima facie proof of facts required to be contained in , 42 application statements, required before filing 41-42 liquor tax certificates, showing transfer, required 80, 88 Entrances: barroom, locked during prohibited hours 108, 114n-115n distance between places of ti-affic and churches, schoolhouses and dwellings measured from nearest 40, 52n-53n, 73, 76n Enumeration of: cities or villages whose population is not shown by last State or United States census 21 district annexed to New York City 22 unincorporated villages or hamlets by State Commissioner 22, 24tt Index. 167 Erie county: paqb Special Deputy Commissioner of Excise for 11 Evidence: of special agents 15n^l6n, 61n Examination, before magistrate: attended by district attorney, when 131 of violators charged with indictable offenses 125, 126n Exception, favoring: certain places, purpose of 45n, 73n-74n certain places, how construed 45n-46n, 74n certificate holders with unlimited dwelling owners' consents filed 40, 48n established hotels near churches and schoolhouses 73, 76n established hotels near dwellings 40, 47n established liquor stores near dwellings 40, 46n established liquor stores near schoolhouses and churches. . .73, 76n-77n established places respecting necessity of owner's consent 40 53n-54n hotel keepers, pharmacists and clubs, during prohibited hours, matters of defense lOOn, 113n, 116n, 119n, 121n Exception, permitting: certain social clubs to traflSc among members, during prohibited hours 111-112, 113n, 119n certificate holder, his family and servants to enter barroom, dur- ing prohibited hours 108 foreign corporation to traffic as common carrier 70 fruit growers to sell product, in certain local option towns. .21, 32, 109 hotel keepers to traffic, during certain prohibited hours 110-111 hotel keepers to traffic in liquors not to be drunk on premises, in certain local option towns 32-38 pharmacists to sell liquors on prescription, during prohibited ' hours 109-110, 113n Excise commissioner, see State Commissioner of Excise; Deputy State Commissioner of Excise; Second Deputy Commissioner of Excise; Special Deputy Commissioner of Excise. Excise taxes, see Taxes upon traffic. Execution: county clerk to issue, upon judgment for unpaid fines 129 Executor: may continue traffic under testator's certificate, when 79-80 may not obtain new certificate 72n may surrender testator's certificate for rebate 79-80 X*air grounds: traffic in liquor near, when prohibited 107 168 Liquor Tax Law. False statement: paqb bond not conditioned against 59n cancellation of certificate obtained through 43n, 88, 96n-98n criminal penalty, for certificate holder making, in report to State Commissioner relative to guests 120, 123 criminal penalty, for making, in application 123 criminal penalty, for making, in report to State Commissioner relative to excise accounts 27, 30 what amounts to, when circumstances at time of application are result of scheming 44n-45n Fees: for endorsing consent to transfer certificate. . . ; 87 of county clerk for making report and furnishing recorCs to State Commissioner 131 of County Treasurer for collecting excise taxes 28 of sheriff ,. . 129 Felon: not allowed to traffic 69, 108, 115n pardon of, removes disability 71n Fines: amount of, imposed upon conviction 92, 120, 123, 124n-125n, 134 bond of certificate holder conditioned for payment of 55, 56n collection of, generally 129 distributed like excise taxes 25, 130 Imprisonment for nonpayment of , 124 Imprisonment without, unauthorized 125n judgment for, in favor of State Commissioner, to be entered by clerk upon conviction 129 judgment for. State Commissioner must furnish satisfaction of. . 129 must be imposed, when 123, 125n payable to County Treasurer or Special Deputy Commissioner at once 25, 127, 129, 130 sheriff may levy upon what property to collect judgments for. . 129 State Commissioner may sue upon liquor tax bond to collect. . . . 130 Fire: suspension of traffic caused by 46n, 47n Foreign, corporation: may traffic in liquor only as common carrier, etc 70 Forfeiture of bonds, see Liquor tax bonds. Forfeiture of certificate: direct object sought in cancellation proceedings 88-92, 93n-102n follows ipso facto upon conviction of holder 123 follows ipso facto upon two convictions of holder's employes. . . . 124 follows judgment for civil penalty 135 Index. 169 Fraud, see False statement. pagh Fruit growers: may sell fruit liquor under exception of local option provisions. . 21 32, 109 Gambling: bond of certificate holder conditioned against 55, 58n-59n keeper of place for, prohibited from trafiicking in liquor 71 prohibited .108, 114n slot machine a device for 59n Gift: conviction for, improper under indictment charging sale 122n of liquor during prohibited hours 107 to certain persons, prohibited 105 what constitutes, exposing for sale, and not 122n without payment of excise taxes 107 Girl: serving of liquor by, when prohibited 108, 115n Glass, oimque or colored, see Screens. Good character: when not a defense 122n Good faith: dwellings not constructed in 51n hotel guests must obtain board and lodging In Ill immaterial upon proof of violation or false statement in can- cellation proceedings 97n In selling liquor to minors, no defense 106n Injunction refused upon compliance with statute in 105n not a substitute for true statements in application for certificate. . 44n not equivalent to required dwelling owner's consents 49n who are hotel guests in Ill, 117n-119n Governor: may remove officers for neglect of duty 133 Grand jury: district attorney must report complaints dismissed by 132 district attorney must present evidence of violations to, when . . . 131 illegal evidence before 126n magistrate may examine and hold alleged violator for 125 prosecution of violators before, outside "of New York City, as a matter of right, wheli 125 removal of excise cases from Special Sessions in New York City for prosecution by 128n special agents may be witness before, when 132n Groceries: liquor to be drunk on premises may not be sold with 69 170 Liquor Tax Law. Guests: ^a.qe accommodation for how many, required of hotels Ill defined Ill, 117n-119n record of, must be liept by hotel keepers daily 120 report of hotel keepers to State Commissioner showing daily record of 119 Hamlets: enumeration of and tax rate in 21-22, 24n Holder of certifi.cate: who is the 68n-69n, 77, 87n See also Prohibited persons. Hotel: certificates for traffic in, issued by whom 16, 62 defined ' 47n, 76n, 110-111, 116n-117n exceptions favoring, relative to traffic near schoolhouses, churches and dwellings 40, 47n, 73, 76n near churches and schoolhouses, when privileged 76n near dwellings, when privileged 47n-48n structural requirements of Ill, 116n-117n tax on traffic in 16 Hotel keeper: bound by statement as to kind of traffic to be conducted .... 43u, 116n local option question relating to 31, 32-33 may sell liquor during some of the prohibited hours, where, when and to whom 110, 113n, 116n must keep a daily record of guests 120 report to State Commissioner showing guests, when re- quired 119 statements required of, in application for certificate 41, 116n Hours, see Prohibited hours. Imprisonment : alternative sentence to enforce payment of fine 124 direct sentence, for violations generally 123 direct sentence, for certain offenses where fine is also neces- sary 123, 125n Indian: liquor must not be sold or given to 105 Indictment: dismissal of, reported to State Commissioner by county clerk.. 130 dismissal of, on motion of district attorney 132n-133n form of 121n-122n of applicant for rebate 78 proof in trial upon 122n report of, to State Commissioner by county clerk 130 Index. 171 Indictment — Concluded. paqe triable in court of record 125 trial of complaints in New York City by, when permissible. .12Tn-128n Inducement: special agents investigating offer no, to violators 15n-16n, 61n Information : before magistrate, sliould not be in alternative 126n may be laid before magistrate by any citizen or oflSeer having knowledge 126n should charge specific offense 126n Injunction: restraining traflic pending cancellation proceedings 91 restraining transfer or surrender pending cancellation proceed- ings 8» See also Cancellation proceedings; Injunction proceedings. Injunction proceedings: before whom brought 103 costs in, discretionary 104 evidence necessary 103, 104n-105n grounds for 103 not barred by cancellation proceedings 105n petition for, must state facts 103 preventive remedy. 104n-105n referee may be appointed to take testimony 103 who may bring 103 Tn mates: of penal and charitable institutions, liquor not sold or given to. . 106 Interest: on undistributed excise money 30 Intoxicated x>erson: liquor must not be sold or given to 105 Intoxication: arrest for public, without warrant 133 civil damages recoverable as a result of 133 courts having jurisdiction to try complaints for public 126, 134n employment of persons addicted to, prohibited 134 penalty for 133-134 public, a misdemeanor 133, i34n Investigation : latitude of, by special agents 15n-16n Issuance of certificates: by County Treasurers and Special Deputy Commissioners, for all traffic except 3is, 62, 112 172 LiQUOK Tax Law. Issuance of certificates — Concluded. page by State Commissioner of Excise, to replace lost certificate, for common carrier's, veliicle and pharmacist's stamp traffic 18, 20 38, 62, 67 certiorari to compel 87-88, 92n See also County Treasurer; Liquor tax certificate; State Commissioner of Excise; Traffic in liquors. Judgment: for fine or penalty, bond or certificate holder conditioned for pay- ment of 55, 56n, 130 for fine or penalty, to be entered in favor of State Commissioner by county clerk 129 satisfaction of, by State Commissioner for fine paid 129 transcript of, county clerk to furnish State Commissioner with 129 Jurisdiction of courts, see Courts. Kitchen : hotel, requirements of Ill Iiicenses : termination of unexpired, under previous law 6-7, 7n See also Liquor tax certificates; Taxes upon traffic. Iiiquors: defined 5, 6n sale of, in any quantity, how restricted 109 sale of, upon prescription 18, 109-110 sold under alcohol certificate, to be used only for mechanical or medicinal purposes 18 sold under fruit grower's certificate, not to be drunk on premises. 21 sold under hotel keeper's certificate, may be drunk elsewhere, when ; 32-33 sold under pharmacist's certificate, not to be drunk on premises and only for mechanical or medicinal purposes, anywhere, ex- cept when 18, 109-110 sold under storekeeper's certificate, not to be drunk on premises. 17 to whom may not be sold or given 105-106 See also Traffic In liquor; Taxes upon traffic. Idquor tax bond: action upon, for full penalty, judgment, fine or other penalty, when maintainable 55, 56n-58n, 130 action upon, where and by whom brought and maintained. .55, 59n-60n amount recoverable where penal sum exceeds statutory penalty . . 56 conditions of, against gambling 55, 58n conditions of, against permitting premises to become dis- orderly 55, 58n conditions of, against unlawful Sunday traffic 59n Index. 173 liquor tax bond — Concluded. pagh conditions of, against traffic after one o'clock a. m 59n conditions of, against violations of Liquor Tax Law 55, 56n-59n conditions of, do not cover principal's false statement in applica- tion , 59n conditions of, do not cover unlawful traffic after surrender for rebate 57n conditions of, for payment of fine or penalty. 55, 56n, 130 executor continuing traffic of testator, must file 79-80 filed with County Treasurers and Special Deputy Commissioners, except upon common carrier's traffic 54 filed with State Commissioner upon common carrier's traffic. ... 54 form of 54-55, 56n liability under, duration of , 57n-58n liability under, extent of financial 56n-^7n, 60n may have corporation or individual sureties 55 moneys recovered in actions upon, payable by State Commis- sioner to State Treasurer. 55 penal sum of 54 receiver continuing traffic of certificate holder must file 79-80 refusal to file, penalty for 123 required of every dealer trafficking In liquors 54 State Commissioner of Excise only may bring actions upon. .55, 59n sureties on, must be approved 62 transfer of certificates from place to place requires new 85 transferee of certificate must file new 80, 85, 86 who may be Individual sureties upon 55, 124 Iiiquor tax certificate: affords no protection unless holder complies with statute 43n application for, see Application statement for liquor tax certificate. assignee of, see Assignee of certificate. certiorari to compel Issuance of, see Certiorari proceedings. duplicate, see Duplicate certificate. endorsement of, see Endorsement. evidence of payment of excise taxes 23n, 81n expites annually . . . . ; 25, 42n, 65 for each distinct bar, necessary 20-21, 24n form of 65-66, Sin furnished to certificate issuing officers by State Commissioner. . . 65 holder of, forfeits it on conviction for offense committed before its Issuance 71n holder of, issued for another place than where he violates law forfeits It 71n, 83n holder of, more than one forfeits all if he violates the law. .71n, 98n holder of, who is g^n 174 LflQuoB Tax Law. Liquor tax certificate — Concluded. i'age holder of, responsible for its use 57n, 68n how forfeited, see Forfeitures of certificates. issued by County Treasurers and Special Deputy Commissioners, except 38, 62, 112 issued by State Commissioner of Excise to replace lost certificate, for common carrier, Tehicle and pharmacists stamp traffic. .19, 41 62, . 67 See also Issuance of certificates; Local option. may not be mortgaged 84n merely a receipt for excise taxes 65-66, 81n must be kept posted to cover traffic 67, 68n, 107 must not be posted at any other place than designated therein. . . 67 not a chattel but a chose in action 84n not subject to levy and sale under execution 84n obtained as a matter of legal right, not discretion 42n of itself affords no protection 43n payment of excise taxes, filing of application and bond neces- sary to obtain 62 penalties for trafficking without, see iCrimlnal penalties, persons not entitled to traffic under, see Prohibited persons, places, where traffic under is prohibited, see Prohibited places, posting of, see Posting. proceedings to revoke and cancel, see Cancellation proceedings, property rights of holder in, are qualified and subject to for- feiture 93n-«5n property rights of holder in, if any, reached through receiver. .79, 84n property rights of holder in, lacking in void 81n-82n property rights of holder In, not subject to execution 84n property rights of assignee in, no greater than holder's 84n rebate upon, see Rebate. sale and transfer of, see Assignee of certificate. surrender of, for cancellation, see Surrender of certificate; Rebate. surrender of forfeited, see Forfeiture of certificate. transfer of, see Transfer of certificate. void, no rebate allowed on 81n-82n void, not transferable 87n void, unless statute is complied with 43n, 81n-82n who may hold or have Interest in 69-71, 71'n-72n, 12a-42it Liquor Tax Law: amendments to 138n-139n constituted chapter 29, General Laws 3 constitutional exercise of police powers 6n, 7n, 23n, 27n, 98n-96n laws repealed by 136-138 license not a tax law ^ 23n Index. 175 Uvular Tax Law — Concluded. paqe short title 5 supersedes local ordinances 137n took effect, when 3 Local option: certificates must not be issued in towns contrary to. . .32, 34n, 62, 64n decided by direct vote on specified questions 31 legality of vote upon, may not be attacked coliaterally by cer- tiorari to compel issuance of certificate 35n penalties for trafficking contrary to 123 provision for, to regulate traffic in towns 30 questions submitted relate to different kinds of traffic 31 restricts, pharmacist's traffic under storekeeper's certificate 18 restricts, vehicle traffic under storekeeper's and vehicle certifi- cates 20 restricts, store traffic by saloon keepers 17 restricts, but does not entirely control friiit grower's traffic 21 soliciting orders for liquors contrary to, prohibited 109 traffic contrary to, how charged 122n Local option questions: all submitted 34n ballots, for submission of 32-33, 34n ballots, how numbered 34n certificates may not be issued contrary to vote upon. .32, 34n, 62, 64n collateral attack against vote upon not permitted 35n effect of certain result upon, in favor of hotel keeper 32-33 effect of certain result upon, restricting pharmacist 33 form of 31, 34n form of petition for submission of 31, 34n improper submission of, remedied, how 33, 35n-37n legality of vote upon 34n-37n may be submitted at biennial town meetings 31 new petition for submission of, at special town meeting, to be filed with town clerk 33 3gjj petition for submission of, always necessary 33, S5n petition for submission of, filed in town clerk's office 31, 33 petition for submission of, town clerk to file certified copy in county clerk's office, when 31-32 petition for submission of, when to be filed 3I posting and publishing notice of intended submission 32, 36n-37n resubmissiion, at special town meeting, when authorized. ..33, 85n-37n resubmission, biennial town meeting, when authorized. . .31, 34n 3.-)n result of negative or equal vote upon 30 result of vote upon, not statement, controls 35jj return of votes upon, made Immediately 30 176 LiQUOB Tax Law. iMcal option questions — Concluded. ^-^^^ special town meeting for submission of, how obtained ^. . . 33 statement of result of vote upon, with whom filed 34 town clerk's duties in submission of, at biennial town meeting. . .31-32 town clerli's duties in submission of, at special town meeting 33 traffic in liquors in any quantity restricted as a result of vote upon certain 109 towns dependent generally upon result of vote upon certain ... 17, 18 20, 21, 31 vote upon, at biennial town meeting, takes effect, when 33 vote upon, at special town meeting, takes effect, when 34, 37n-38n who may vote upon 32 Xodgers: report of certificate holder to State Commissioner showing record of 119 Iiost certificate; duplicate issued by State Commissioner, when 67 Magistrate: in New York City should hold alleged violators for trial in Special Sessions 127 may examine and hold alleged violators for grand jury outside of New York City, when 125 may try complaints, when 126 must make report of persons held for trial 125-126 llandamus: alternative writ, to compel payment of rebate 85n peremptory writ, to compel payment of rebate 85n to compel issuance of duplicate rebate receipts 85n to correct count of local option vote 35n to remedy irregular submission of local option not permitted. . . . 35n Manhattan.: borough of. Special Deputy Commissioner for 11 liCanufacturers of liquor: produced from fruit, may traffic in local option towns, how. . . .21, 109 Mayor: may permit issuance of all-night certificates 112 Meal: liquor may be served to hotel guests with, when 110, 111, 117n-119n Measurements : of distances between, dwellings and places of traffic, how taken 40, 52n of distances between, churches, school houses and places of traffic, how taken 73, 76n Index. 177 Kinor : pagb evidence as to age of 106n, 122n liquor must not be sold or given to 105, 106n under sixteen years, not permitted in barroom 107n under twenty-one may not traflSc in liquor 69 lUsdemeanor: any violation of Liquor Tax Law is 68, 92, 120, 123, 124, 133, 134 triable where In New York City 127, 127n-128n triable where outside of New York City 125 Uonroe county: Special Deputy Commissioner for 11 ilfearest entrance: measurement of distances properly taken from 3i*, 40, 52n-53n 73, 76n what constitutes, of dwellings and places of traffic' .52n-53n Neglect of duty: effect on local option vote 36n-37n, 64n penalties for, see Civil penalties. New York City: charter of, affecting criminal prosecutions under Liquor Tax Law 127, 127n-128n Special Deputy Commissioners for boroughs of 11 taxes upon traffic in 22-23, 24n ITotice: by State Commissioner to certificate holders to report guests. . . . 119 forbidding sale or gift of liquor necessary to recovery of civil damages 133 forbidding sale or gift of liquor to posted persons 106 of application for injunction restraining traffic during pendency of cancellation proceedings 91 of local option submission at biennial town meeting 32, 36n-37n of local option submission at special town meeting 33, 36n-37n of refusal to issue certificate 68, 88 to common carrier having intemperate employee 134 to State Commissioner, from all parties in all civil actions or pro- ceedings 9 to State Commissioner, from all parties in cancellation proceed- ings 89 to State Commissioner, of application for special town meeting. . 33 to State Commissioner, of application to discontinue cancellation proceedings 91 to police authorities, of application for rebate 80 Office: of State Commissioner, In the Capitol at Albany 10 12 (/ 178 LiQDOE Tax Law. Officers: ^•*^o» local, when authorized to arrest, may enter places of traffic 132 penalty for neglect of duty by 26-27, 133 penalty for neglect of duty, how collected 135 Old license, see License. Owner: of dwelling, consent of .40, 45n-49n of dwelling, who is 49n of premises where liquor Is sold, consent of 40, 53n-54n of premises where liquor is sold, who is 54ii of premises where liquor is sold which causes damage, when liable 133 Parties to civil eixcise litigation: certificate holder, law looks to 57n-58n, 68n-69n, 87n citizen may commence cancellation proceedings 88 County Treasurer, is statutory defendant to cancellation proceed- ings 89 County Treasurer may commence injunction proceedings 108n County Treasurer, action of, in refusing to issue or transfer cer- tificates, reviewable 88, 92n County Treasurer, action of, in refusing to issue duplicate rebate receipts, reviewable 85n Deputy State Commissioner may commence cancellation pro- ceedings 88 Deputy State Commissioner may commence injunction proceed- ings 103 fiscal officers may sue for undistributed excise money 27 Special Deputy Commissioners, see County Treasurers. State Commissioner of Excise, is statutory defendant to all civil actions or proceedings 9, 33, 89 State Commissioner of Excise may be compelled to order pay- ment of rebate 85n State Commissioner of Excise may commence cancellation pro- ceedings 88 State Commissioner of Excise may commence Injunction pro- ceedings 103 State Commissioner of Excise may commence actions to collect full penalty of liquor tax bonds 55, 59n-60n State Commissioner of Excise may commence actions to collect indemnity under depository bond 26 State Commissioner of Excise may commence actions to collect penalties 135 State Commissioner of Excise may commence actions to collect penalties for neglect of official duty 135 Index. 179 Parties to civil excise litigation — Concluded. page State Commissioner of Excise may commence actions to collect unpaid fines 130 taxpayer may institute Injunction proceedings 103 who entitled to or liable for civil damages 133 See also Notice. Partnership, see Copartnership. Passengers: in transit, common carrier may only sell to lOB Penal institutions: traffic near, restricted 72 Penalties, see Civil penalties; Criminal penalties. Permit: to traffic all-night in cities, granted by vs^hom 112 Person: defined 5 liable criminally ■ 120-121 See also Civil penalties; Prohibited person; Guest. Petition: for certificate, see Application statement. for injunction 103 for rebate on certificate 78 for revocation of certificate 89, lOOn for submission of local option questions 31, 34n, 35n for si>ecial town meeting, when and where filed 36n for transfer, see Transfer of certificate. Pharmacist: additional statement required with application for certificate. ... 41 board of pharmacy license forfeited upon conviction of 123 certificate for traffic by, issued by whom 17-18, 62 exception favoring, during prohibited hours, matter of defense. . . 113n local option question relating to traffic by 31 may sell alcohol without prescription, when 18 may sell liquors on prescription during prohibited hours 109 may sell liquors without prescription but with special stamps, when 18-19 tax upon traffic with prescription , 18 tax upon traffic without prescription 17-18 See also Traffic in liquor. Physician, traffic in liquor upon prescription of, see Prescription. Place of traffi.c, see Taxes upon traffic; Prohibited distances; pro- hibited places; Prohibited hours; Posting certificate. Pledges: as security for liquor sold on credit, when void IgO 180 Liquor Tax Law. Police: , *"*°= must report violations to district attorney 131 to be notified of application for rebate 80-81 Police power: Liquor Tax Law, an act of 6n, 23n, 93n-95n Polls: traffic near, prohibited 107 Population: assessment of excise taxes based upon 16-23 determined by enumeration wlien not shown by either last State or United States census 21 determined by last United States census when not possible by last State census 21 determined originally by last State census, if possible 21 of new cities or villages, determined by enumeration 21 of unincorporated hamlets determined by enumeration. .. .21-22, 24n Posted person: liquor must not be sold or given to 106 Posting certificate: in any other place than that designated therein prohibited 67 required before commencing and during continuance of traffic. . 20 67, 68n-69n, 107 Posting local option notices 32-33, 36n-37n Power of attorney: authorizing petition for rebate, rights under 68n, 83n-85n Premises: what are certificated 24n, 58n, 67, 68n Prescription: alcohol, when sold without 18 by whom and when given 18, 109-110 liquor furnished Inmates of penal or charitable institutions on. . 106 preservation of, by pharmacist 18, 109 sale of liquor by pharmacist, during prohibited hours, by 109-110 sale of liquor by pharmacist, only upon 18 sale of liquor by pharmacist without 17-18 sale of liquor by pharmacist with stamps 18-19 Privileges, see Exceptions. Proceedings, see Cancellation, Certiorari and Injunction proceedings. Prohibited distances between: charitable or penal institutions and all places of traffic 72 churches or school houses and places of traffic in liquor to be drunk on premises 73, 76n dwellings and all places of traffic 39, 40, 52n dry goods, provision or drug stores and places of traffic in liquor to be drunk on premises TO Index. 181 ProMbited distances between — Concluded. page fair grounds and places of traffic lOT polls and places of traffic 107 Prohibited hours: entrances to barroom locked during 108, 114n-115n exception favoring hotel keepers during 110-111, 113n, 116n exception favoring certain social clubs during. .. .111-112, 113n, 119n exception favoring pharmacist during 109-110 for sale of alcohol by dealers in alcohol only 20 for sale of alcohol by pharmacists without prescription 18 for sale of liquor by fruit growers and manufacturers 21 right to traffic during, matter of defense 113n, 116n, 119n special all-night permit authorized in cities 112 stamp traffic by pharmacists not permitted during 18 when liquor must not be unlawfully sold or given away. .107-109, 113n windows of barroom clear of obstructions during 108, 115n Prohibited person: procuring liquor for, criminal penalty for 123, 134 to whom liquor must not be sold or given 105-106, 106n who may not, serve liquor 108, 115n who may not, traffic in liquor 69-71, 71n-72n Prohibited places : alcohol only, for sale of 20 asylum, traffic in or near 72 cemetery, traffic in liquor to be drunk in 73 charitable institution, traffic in or near 72 church, traffic in liquor to be drunk on premises near 73, 73n-77n drug store, of convicted proprietor, for one year 123 drug store, traffic in liquor to be drunk on premises connected with 69 dry goods store, traffic in liquor to be drunk on premises con- nected with 69 dwelling, traffic near, without consent of owner 40, 45n-53n fair grounds, traffic in or near lOT grocery store, traffic in liquor to be drunk on premises in con- nection with 69 hospital, traffic in or near State 72 industrial school, traffic in or near 72 penal institutions, traffic in or near 72 polls, traffic near jq7 poorhouse, traffic in or near 72 private property, traffic on, without consent of owner 40, 53n-54n protectory, traffic in or near 72 provision store, traffic in liquor to be drunk on premises in con- nection with Ro 182 LiQUOB Tax Law. Prohibited places — Concluded. fagm. public property, traffic on, without consent of authorities 40 schoolhouse, traffic in liquor to be drunk on premises near. 73, 73n-74n towns, prohibiting traffic under local option 32, 34n-35n, 64n unlawful business, traffic prohibited in connection with 71 vehicle traffic, prohibited except as provided 19-20, 73 Proof: in bond actions eOn-6lB lin cancellation proceedings 90, 97n-99n in criminal proceedings 122n in injunction proceedings 108, 104n-105n Property rights, see Rebate; Liquor Tax Certificate. Proprietors: change of, effect on privileged places of traffic 46n, 76n-77n change of, without consent to transfer, does not release certifi- cate holder or surety 57n-58n, 68n, 87n change of, without consent to transfer unlawful 67 Prosecution: appointment of attorneys by State Commassioner to assist dis- trict attorneys in 14 complaints by citizens and certain officers for 125, 131 criminal, by whom conducted 14, 131-132, 132a district attorney, charged with duty of conducting. 131, 132n how and where conducted In New York City 127, 127n-128n how and where conducted outside of New York City ,. .125-125 Provisions: liquor to be drunk on premises not to be sold with 69- Public intoxication, see Intoxication. Public officers, see Officers. Public property: consent of custodian, necessary for traffic on 40 Public records: records, accounts, reports, applications and bonds when filed, are. 2& Publishing local option, notices 32, 36n-37tt Ptinishment, see Civil penalties; Criminal penalties. Quantity: sale of five gallons not traffic subject to excise tax, except when. & sale of less than five gallons not to be drunk on premises, tax upon 17, 20 sale of any, when prohibited 109 traffic under fruitgrower's certificate, regulated as to 21 traffic under pharmacist's certificate and stamps regulated as to. .18-1& traffic under vehicle certificate, regulated as to 19-20 Queens county: Special Deputy Commissioner for 11 Index. 183 Sebate : pags allowed upon certain certificates only 78 application for, by whom and in whose behalf made. . . .77-78, 84n-85n cessation of traflBc must precede application for 78, 82n-83n certificate must be surrendered 78, 82n compliance with conditions precedent to payment of, necessary. . 78 81n-83n County Treasurer must transmit application for, to State Com- missioner immediately 78 duplicate receipts for, delivered to whom upon surrender 78 duplicate receipts, when paid, returned to State Commissioner. . 79 forfeited upon cancellation of certificate 79, 83n, 90 forfeited upon conviction of certificate holder 82n-83n, 123 forfeited upon conviction of certificate holder's employees. .82n, 124 forfeited upon judgment for civil penalties 135 how computed 78 not allowed to violators 77-78, 82n not allowed on certificates for pharmacists, fruit growers, vehicle or alcohol traffic "78 notice to police officials of application for 80-81 orders for payment of, executed by State Commissioner 79 orders for, payable by State Treasurer and local fiscal officer 79 orders for, payable by State Treasurer on common carrier's cer- tificate 79 ©rders for, payable from what moneys 79 orders for, transmitted to officer issuing certificate for delivery. . 79 payment of, upon certificates involuntarily surrendered upon granting of injunction restraining traffic 92 payment of, how enforced 85n payment of, withheld by State Commissioner thirty days 78, 83n payment of, when withheld longer than thirty days 78-79, 83n payment of, when refused 79, 83n petition for, by assignee, under power of attorney 68n, 78, 83n-85n petition for, T)y certificate holder personally or authorized attorney .i ^g petition for, by deceased certificate holder's representatives 79 petition for, by officials controlling certificate holder's property .80, 84n petition for, must be filed with officer who issued certificate 78 petition for, must be forwarded to State Commissioner by County Treasurers irg petition for, must be verified ^g petition for, must show compliance with statute 78 violators, after surrender within thirty days, not entitled *** 78-79, 83n violators not entitled to apply for 77-78 81n-82n 184 Liquor Tax Law. Receiver : paqb may continue traffic under judgment debtor's certificate 79-80 may surrender judgment debtor's certificate for rebate 79-80, 84n See also Rebate. Bpecord: of guests, boarders' and lodgers open to inspection of special agents 120 of stamp sales by pharmacists 19 See also Accounts. Begister, see Record. Repealing provisions 136 Report of: boards of excise 7 County Clerks 130 County Treasurers and Special Deputy Commissioners 30 district attorneys 132 hotel, lodging and boarding house keepers 119 magistrates 125 State Commissioner 8 Representations to secure certificate, see Application statement. Restaurant: tax on traffic in 16 Revenue, see Taxes upon traffic. Revocation: of certificate, see Cancellation proceedings. of consent as dwelling owner . ., 48n, 63n of statement by applicant, not permitted 43a Revocation proceedings, see Cancellation proceedings. Richmond: borough of, Special Deputy Commissioner for 11 Salaries of: Deputy Commissioner, Second Deputy Commissioner, financial clerk, secretary , 10 special agents 13 Special Deputy Commissioners ' 11-12 State Commissioner 8 See also Fees. Saloon: tax on traffic in 16 Sandwich, see Meal. Schedule of laws repealed 138 Schoolhouse: building used exclusively as a 75n exception favoring established hotels near 73, 76n exception favoring established liquor store near 73, 76n-77a Index, 185 Schoolhouse — Concluded. pagb provisions relating to traffic near, how construed 74n traffic in liquor to be drunk on premises near, restricted. . .73, 73n-77n when on same street or avenue 75n Screens: in barroom windows during prohibited hours 108, 115n Second Deputy Commissioner of Excise: bond of 10 powers of 10 salary of 10 Secretary: to State Commissioner 10 Separate offense: each violation a 120-121 properly alleged as committed in different ways 121n-122n Servant, see Agent. Service, metliod of: notice of application for rebate 81 notice of demand for report of guests 120 order to show cause and petition in cancellation proceedings. .89, lOln order to show cause and petition in injunction proceedings 103 order enjoining traffic during pendency of cancellation proceed- ings 91 order enjoining traffic in liquor generally in injunction proceed- ings 104 order revoking certificate in cancellation proceedings 90 See also Notices; Time. Serving liquors: away from bar 24n felon prohibited from 108, 115n girl or woman prohibited from 108, 115n to guests of hotel, when and where during prohibited hours 110 117n-119n to minors and certain other persons prohibited 105-106 Sheriff: fees of 129 must report violations to district attorney 131 Slot machine: gambling upon prohibited 58n-59n See also Gambling. Special ageuts: accomplices, when not 15n-16n appointed by State Commissioner 13 bond of H 3 confidential agents of State Commissioner .13 15^ 186 LiQuoB Tax Law. Special agents — Concluded. page detectives, are not 16n duties, relating to collection of excise taxes 13 duties, investigation of violations 13-14, 16n, 132n evidence of 15n-16n, 61n liability of, for neglect of duty 14 may enter places of traffic, when 13, 132 may be designated to perform duties of County Treasurer, when. 12 method of Investigation by, discretionary 15n-16n must report violations to State Commissioner 13-14 number of 13 salary and expenses of 13 subsistence of 13 under directions of State Commissioner 13, 15n-16n witnesses before grand jury 132n Special Beputy Commissioner of Excise: appointment of 11 bonds of 11 borough of Brooklyn 11 boroughs of Manhattan and The Bronx 11 borough of Queens 11 borough of Richmond 12 duties of, see those of County Treasurer. Erie county 11 Monroe county 11 salaries and expenses of 11-12 under direction of State Commissioner 11 Special Sessions: removal of complaints from. In New York City 127, 127n-128n what complaints are triable at, In New York City 127 what complaints are triable at, outside of New York City 126 Special town meeting: duties of town clerk in submitting local option questions at. .33, 36n effect of order granting, on previous local option vote 37n how conducted 37n how obtained for resubmission of local option questions 33 submission of local option questions at, when permitted. .33, 35n-37n Stalls: In barroom, prohibited 109, 115n Stamps for pharmacists traffic : affixed to every bottle sold 18 excise taxes received from, how distributed 19 issued, by State Commissioner 18 issued, to whom 18 Index. 18T State Coxainissioiier of Excise: face. application for common carrier and vehicle certificates filed with 41, 62 appointment, qualification, general provisions 8 appointment of, attorneys to conduct department litigation 14 appointment of, attorneys to assist district attorneys 14 appointment of. Deputy and Second Deputy Commissioners .... 10- appointment of, secretary, financial and other clerks 10 appointment of, si)ecial agents 13 appointment of, special agents to act as County Treasurers. .. .12-13 appointment of, Special Deputy Commissioners 11-12 blanks furnished by 28-29, 65, 112. bonds for common carrier traffic filed with 54 certificates forfeited upon conviction, must be forwarded to. .. . 123 certificates, for common carrier and vehicle traffic Issued by 1&-20, 62 certificates, to replace lost certificate may be issued by 67 clerical force in office of II clubs may be inspected by direction of 132' consent of, necessary, in citizens' cancellation proceedings 89 depositories of excise moneys designated by 26- duties of 8-9 entitled to notice of application for special town meeting 33 entitled to notice of proceedings and service of papers in certain litigation, from all parties 9 entitled to notice of cancellation proceedings, from. all parties. ... 89- enumeration of cities, villages and hamlets by 21-23, 24n examination of excise accounts and records by 9 judgment for fines in favor of, entered and satisfied, hcrw 129* may bring cancellation proceedings 88 may bring action for civil penalties against public officer 135 may bring action for civil penalties against violators 134r-135 may bring action on bond of depository of excise moneys 26- may bring action on liquor tax bond for full penalty 55, 59n-60n may bring action on liquor tax bond to collect unpaid penal- ties 55, 130 may bring injunction proceeding 103 may employ attorneys and counsel 14 necessary party to cancellation proceedings 89 necessary party to certain litigation 9- office of, in the Capitol building ; lo- rebates payable on order of 79, 85n. record and account books furnished to County Treasurers and Special Deputy Commissioners by 28-29 report of 8 188 LiQuoE Tax Law. State Ooanmissioner of Excise — Concluded. taqh report to, by county clerks 130 report to, by County Treasurers and Special Deputy Commis- sioners 30 report to, by hotel, lodging and boarding house lieepers 119 report to, by magistrates 125-126 salaries and expenses of 8 special agents are confidential agents of 15n stamps for pharmacists traffic issued by 18 term of office 8 transfer of common carriers' certificates regulated by 70 State Treasurer: rebate on common carriers' certificates payable by 79 State's share of excise taxes payable to 25 State's share of rebate on certificates, except common carriers', payable by 79 Structural requirements of hotels 110-111, 116n-117n Subsistence: defined 5 allowance for 13 Sunday: traffic on, how charged 121n unlawful traffic on, forfeits certificate or bond 59n, 98n, 113n-114n See also Prohibited hours. Supreme Court, see Courts. Surety: on depository bond, liability of 27n on liquor tax bond, see Liquor tax bond. Surrender of certificate: involuntary, upon conviction of holder or employes 123, 124 involuntary, upon judgment in penalty action 135 involuntary, when restrained from trafflcliing, peMing cancella- tion proceedings 91 traffic in liquors after, effect of 68n, 82n, 83n, 99n voluntary, for rebate, see Rebate. Suspension of traffic, see Abandonment. Taxes upon traffic; amount of, assessed on various grades annually 16-21 amount of, commenced after annual tax is payable 25 amount of, constitutionally assessed though not uniform 28n amount of, determined generally by population 16-23 amount of, equivalent to license fee 23n amount of, in New York City 22-23, 24n annual, when due and payable 24t-25 at each distinct place 20-21, 24n Index. 189' Taxes upon traffic — Continued. page bank or depository receiving, must furnisli bond 26 • belong to State, city or town immediately upon collection 27n certiorari to compel Issuance of certificates upon payment of proper 87-88, 92n deposit of, until distribution by Special Deputy Commissioner.. 26 deposit of, in separate account, required 30 deposit of. Interest upon 30 distributed between State and towns and cities 25-26 distributed within ten days from receipt 25 distributed strictly according to statute 27n-28n fines for certain offenses must equal one-half 123 grades of 16-21 in alcohol only for mechanical or medicinal purposes, amount of . . 20 in liquor, by common carriers, amount of 19 in liquor, to be drunk on premises, amount of 16 in liquor, to be drunk on premises, covers traffic not to be drunk on premises, when 17, 32-33 in liquor, not to be drunk on premises, amount of 17 in liquor, not to be drunk on premises, covers traffic under pre- scription by pharmacist, when 18 In liquor, by pharmacist, under prescription, amount of 18 in liquor, by pharmacist, under prescription, covers traffic in alcohol without prescription, when 18 In liquor, by pharmacist under prescription covers, other traffic without prescription on payment of stamp tax 18-1& in liquor, produced from fruit by growers or manufacturer. ... 21 in places not separately enumerated in State or United States census 21-22 . increased or decreased only by subsequent State or United States census 22 lien upon property of dealer 25 liquor tax certificate, merely a receipt for ". . .65, 66, 81n not public moneys 27n of common carriers and vehicles, belong wholly to State 25 payable to County Treasurers and Special Deputy Commissioners except 25 payable to State Commissioner on common carrier and vehicle traffic and pharmacists stamp business 19, 20, 25 - payment of, before commencing traffic, mandatory 107, 112n payment of, by certificate holders in advance, for convenience. . 68 payment of, without obtaining and posting legal certificate no protection 42n penalty for failure of County Treasurer or Special Deputy Com- i missioner to report receipt of, and distribute 26 purpose of 23n; 190 Liquor Tax Law. Taxes upon traffic — Concluded. page report of County Treasurer and Special Deputy Commissioners to fiscal officers showing receipt of 26 special agents to investigate matters relating to collection of . . . . 13 State's share of, credited to general fund 25 towns' and cities' share of, paid to local fiscal officer 26 towns' and cities' share of, how appropriated and expended. ... 26 under all-night permit 112 Taxpayer: may bring injunction proceedings 103 Time: annual examination of County Treasurers' accounts must be made 9 barroom must be closed generally 108, 110, 114n-115n cancellation of certificate disables holder from trafficking 70 certificates, may be surrendered for cancellation 78, 81n-82n certificates, may be issued 25, 41 certificates, may be revoked and cancelled 88 certificates, may not be issued for place of convicted pharmacist. 124 certificates, expire annually 25, 65 certificates, must be posted 67-68, 68nj 112n-113n clubs, entitled to privileges may traffic 111-112, 113n, 119n clubs, must have been organized and trafficking among members to obtain benefit of exception 73, 111-112, 119n convicted violators may not hold certificates 69, 124 excise taxes, are payable 26 excise taxes, are subject to change 22 excise taxes, must be distributed by County Treasurer 25 excise taxes, must be deposited In banks after collection and before distribution 30 excise taxes, must become property of locality In part 26, 27n hotel keepers may traffic 110, 113n, 116n Injunction may be granted to restrain traffic during pendency of cancellation proceedings 91 lien, on liquor dealer's property attaches if excise taxes are not paid 25 lien, on convicted violator's property attaches if fine is not paid. . 129 liquor tax law and amendments went into effect 3, 138n-139n local option petition must be filed with town clerk 31 local option questions may be submitted 31 local option vote takes effect 33, 34, 37n-38n order to show cause, must be returnable. In cancellation pro- ceedings 89, lOOn-lOln order to show cause, must be returnable, in injunction proceed- ings 103 Index. 191 Tim.e — Concluded. pagb order to show cause, must be served before returnable, In can- cellation proceedings 90 order to show cause, must be served before returnable. In injunction proceedings 103 pharmacists may traffic 109, 113n places of traffic must have been continually used for certain purposes to obtain benefit of exceptions. .39, 40, 46n-48n, 73, 76n-77n quantity of liquor, taxable- if not delivered at one 5 quantity of liquor, salable, under pharmacists' stamps 18-19 quantity of liquor, salable, vehicle certificate 19-20 quantity of liquor, salable, fruitgrowers' certificate 20 rebate, is allowed on voluntary surrender 78 rebate, is allowed on involuntary surrender 92 rebate, is withheld after surrender 78-79, 83n separate offenses, as determining what are 120-121, 122n town clerk, calls special town meetings 33 town clerk, files copy of local option petition with county clerk. . 31 town clerk, posts and publishes notice that local option questions are to be submitted 32-33, 36n-37n traffic in liquor Is prohibited generally 107, 113n traffic in liquor is permitted under all-night certificates 112 violator may be sentenced to imprisonment, as direct penalty. . . . 123 violator may be sentenced to imprisonment, for nonpayment of fine 124 when applicant for certificate must comply with law. .38, 43n, 67, 107 See also Notices; Prohibited hours; Reports. Town clerk: duties of, in submission of local option, see Local option questions. Town meeting, see Biennial town meeting; Special town meeting. Towns: excise taxes belong to, see Taxes upon traffic, local option in, see Local option. Traffic in liquors: abandonment of, see Abandonment. at prohibited places, see Prohibited places. after surrender, effect of 68n, 82n-83n, 99n by common carrier, limited to passengers in transit 109 by executor or administrator under testator's certificate 79-80 by hotel keepers, requirements and exceptions 110-111 113n, 116n-119n by pharmacies, exceptions 18, 109 by prohibited persons, see Prohibited persons. by receiver of holder, until his certificate expires 79-80 192 LiQUOB Tax Law. Traffic in liquors — Concluded. ^^°^ by social clubs, exceptions 112, 113n, llOn different branches of 16-21 definition of, as affecting assessment of excise taxes 5 during prohibited hours, see Prohibited hours. from vehicle, prohibited with one exception 19, 73 illegal sales and acts generally 107-lOa in towns, see Local option. penalties for unlawful, see Civil penalties; Criminal penalties. places occupied for, may be entered for investigation, when. .13, 132 regulation of under police power 3, 6n, 23n, 93n-95n to be drunk on premises, not permitted under storekeeper's certificate 112d to be drunk on premises, must not be carried on with business of selling groceries, provisions, drugs, or dry goods 6& unlawful until payment of tax, procurement and posting of legal certificate 67, 107, 112n who shall not, see Prohibited persons. Transfer of certificate: application and bond required upon 80, 84n, 85, 86, 87n certiorari to compel 88, 92n consent of officer who issued certificate necessary 85-86 fees upon 87 for dining cars, regulated by State Commissioner 70 for fruit grower's traffic not permitted 21 for vehicle, alcohol, and pharmacists traffic not permitted 20 from place to place when permitted 85-86 from person to person, when permitted 86, 87n to official representatives of holder, authorized 79-80 to personal representatives of deceased holder, authorized 79-80 Trial by jury: in cancellation proceedings, unprovided for and unnecessary .... 90 94n-95n in criminal prosecutions in New York City, a matter of discre- tion 127, 127n-128n in criminal prosecutions outside of New York City, a matter of right generally 125 Vehicle traffic: certificates for. Issued by State Commissioner 20 certificates for, may not be transferred or surrendered 78, 86 confined to malt liquor in certain quantities 19-20' prohibited generally 73 restricted by local option 20, 109 who may engage in 19t Index. 193 Venue : PAan of bond actions 55, 60n of cancellation proceedings 89 of penalty actions 135, 136n View: of barroom, during prohibited hours 108 Villages: excise taxes in, rate of 17 hotels in and near certain, requirements for 110 Violation of Iiiquor Tax Iiaw: all, misdemeanors 68, 92, 120, 123, 124, 133, 134 any, sufficient ground for cancellation proceedings 88, 96n-99n penalties for, see Civil penalties; Criminal penalties. taints the offender, not merely the certificate in force. .71n, 83n, 98n what constitutes separate 121, 121n-122n who are liable for 68n-69n 88, 98n, 120-121 See also Convicted violators; Prosecutions. Warrant: arrest for public intoxication without 133 issuance of, by magistrate 125 Windows: barrooms, not screened during prohibited hours 108 hotel, size and number of bedroom Ill Witnesses: special agents as 15n-16n, 61n, 132n Woman: serving of liquor by, prohibited 108, 115n 13