PRICE, $1.23. GRAHAM k LANE'S EXCISE LAWS OK THE STATE OF NEW YORK, INCLUDING THE RIGHTS, DUTIES AND LIABILITIES OF HOTEL KEEPERS. BY C. H. GRAHAM and 0. F. LANE, COUNSELORS AT LAW. ALBANY, K Y.: / W. G, LITTLE & GO., Law Booksellers and Publishers, 1883. SEYMOUR DURST GREAT REDUCTION IN PRICE. (The only work on the subject. ) HVLc CLELLAN'S SURROGATE'S COURTS PRACTICE. By HON. BOBT. H. McCLELLAN, Counselor at Law. SECOND EDITION, WITH AMENDMENTS OF 1883, Thoroughly Revised and Greatly Enlarged. ONE VOLUME, 8 VO,, ABOUT 1050 PACES. PRICE, $5.00, NET, Two Successful Books by H. G. WOOD. WOODS' COLLYER, ON THE LAW OF PARTNERSHIP. Re- written, Revised and Carefully Annotated by HORACE C. WOOD, Author of "The Law of Nuisances," "The Law of Master and Servant," "The Law of Fire Insurance," "Landlord and Tenant," "Mandamus," "Limitations," etc., etc. Two Volumes, Royal Octavo. Price reduced to $8 00 net. The Publishers take great pleasure in offering to the Profession a work upon the Law of Partnership that will be found to cover the topic in all its aspects. A work that is ti ll, complete and exhaustive. Not a re-hash of stale propositions, but a work that covers all the intricate details of the subject involved in a practical manner, and that is arranged in convenient form, in Sections, with head lines and catch words, and, above all, a full and Compltte Index. The original work is embraced in less than 800 pages, while this edition covers nearly 2,000 pages; each page containing more matter than is embraced in any page of the original work, and citing over seven thousand cases, in addition to those cited by the author. WOOD'S BEST ON THE LAW OF EVIDENCE. THE PRINCIPLES OF THE LAW OF EVIDENCE. By W. M. Best, of Gray's Inn, with Copious Notes and References to American Cases, by H. G. Wood, Editor of Wood's Collyer on Partnership, etc., etc. The extraordinary sale of this work within the last few months is the most convincing proof of the high estimation in which it is held by the legal profession. The Bench and Bar alike speak of it as the most able and practical treatise upon the subject of evidence which has yet appeared. Mr. H. G. Wood — the American Editor — has already established a reputa- tion as a writer of Law Books, which is second to no other in this country. Two Volumes, octavo. Nearly 1,500 pages. Send for our Catalogue and Circulars. Price reduced to $6.00 net. W. C. LITTLE & CO., Law Booksellers and Publishers, Albany THE EXCISE LA"WS OF THE STATE OF NEW YORK, INCLUDING THE RIGHTS, DUTIES AND LIABILITIES OF HOTEL KEEPERS. BY C. H. GRAHAM and O. F. LANE. COUNSELORS AT LAW. ALBANY, N. Y.: W. C. LITTLE & CO., LAW BOOKSELLERS AND PUBLISHERS, 1883. COPYRIGHT, GRAHAM & LANE, 1883. Riggs Printing and Publishing Company, PRINTING, BINDING AND ELECTROTYPING, 461 Broadway, Albany, N. Y. /a: - 1 ' DWR..ST PREFACE. To the Public : In submitting this work upon the excise and hotel laws, and the duties and liabilities of hotel keepers, it is done with a full knowledge of the difficulties to be overcome. From a long practice and a thorough examination of these laws as scattered through our statutes, as well as by an examination of an occasional work covering some portion of the ground by some author who discovered its necessity, we have become satisfied that there is a chance for much improvement ; but that our work is perfect we do not pre- tend. Difficulties are many, in the way of a thorough eluci- dation, and if we have, in the main, succeeded, we shall be satisfied. The practitioner and temperance reformer meet many dif- ficulties in their efforts to enforce the excise laws. These we have attempted to surmount. We cannot, however, make it easy or reputable to engage in the business of an informer, neither can we restrain the liquor seller from de- nying his guilt, or induce the excessive drinker to abstain from his cups and prosecute the men who have robbed him and his family of their sustenance. Our labor is not for the special purpose of reformation, but simply to collect and arrange the law as we find it filled with many imperfections and sometimes contradictions and endeavor to present, as far as possible, the law of to-day, and the various decisions thereon by the courts that help to elucidate and explain the conflicting and ambiguous stat- utes. If, under the. various sections of the several statutes, we have made too many explanations, it is because the work is intended to meet the eye of those not learned in the law, 4 PREFACE. as well as to assist those of our profession who have not the time to examine all the questions to be found herein, and who prefer to take some things for granted, and feel that in so doing they are relying upon some one who has given the subject thorough examination, and that the result of such examination is before them. Errors there are no doubt, but they have been avoided as carefully as possible, and our work is submitted with the conviction that it is not wholly in vain. To every lawyer it is a necessity, to innkeepers it is im- portant, as it gives them the opportunity, easily, to know the law and their liabilities thereunder, and to excise com- missioners, overseers of the poor and temperance reformers it is important, that they may know their duties and the labor that lies before them. The Authobs. CONTENTS. CHAPTER I. STATUTES. SECTION I. Commissioners of excise — how and when elected— certain town and village officers ineligible — qualifications of — number — duties — compensation — how paid — term of office — vacancies, how filled. SECTION II. Commissioners, how voted for — oath of office — must file bond — excise money — how disposed of. SECTION III. Certain special acts not affected. SECTION IV. Appointment of commissioners in cities other than New York, Brooklyn, and Poughkeepsie — how appointed in New York, Brooklyn and Poughkeep- sie — term of office — salaries in cities — how fixed and paid — disposal of ex- cise moneys — commissioners may be removed. SECTION V. Declaratory of the several statutes in section 4. SECTION VL Special act for New York and Brooklyn — powers and duties of commissioners in — may license persons not innkeepers. SECTION VII. New York and Brooklyn — commissioners may allow licensee to remove to other premises — preliminaries required. SECTION VIII. New York and Brooklyn — licensee not to be arrested without warrant — limited to certain defenses. 6 CONTENTS. SECTION IX New York and Brooklyn— Section 6, act of 1857. not applicable to New York and Brooklyn. SECTION X. Sale, etc , without license a misdemeanor — existing laws as to sale, etc., and penalties the same as under act of 1857, except as modified. SECTION XI. When commissioners to meet to grant licenses in towns — in cities — when licenses expire. SECTION XII. Qualifications of applicants for license— place of sale to be named in applica- tion — license fee in towns — in cities — application for license — license to be posted up — board to keep record — contents — five gallons and over may be sold without license. SECTIONS XIII, XIV, XV, XVI. Sections 2, 3, 4 and 5 of the act of 1857, and generally superceded. SECTION xvn. Hotel keepers only to be licensed — qualifications of — accommodations and re- quirements — commissioners' liabilities for illegal proceedings. SECTION XVIII. Applicants to give bonds— amount, sureties and conditions. SECTION XIX. What innkeepers must keep— penalty for neglect— how recovered. SECTION XX. Innkeeper to put up sign — to be kept up— what to contain. SECTION XXI. Hotel keeper cannot recover for liquors trusted out except to lodgers — securities therefor void — shall forfeit double the security for evasion. SECTION XXII. Store keeper's license to prohibit drinking on the premises. SECTION XXIII. Store keepers to give bond— its conditions — drinking on the premises prima facie evidence of occupant's intent, etc., — unconstitutional. SECTION XXIV. Selling by measure without license — penalty therefor. SECTION XXV. Selling to be drank on premises without license — penalty therefor. CONTENTS. 7 SECTION XXVI. Innkeepers and store keepers not to sell to Indian, apprentice or minor, except, etc., — offenders to forfeit ten dollars — who to recover — certain sales de- clared misdemeanors. • SECTION XXVII. Duties of officers and magistrates as to offenses — exclusive jurisdiction, when — bond of offenders — contents — magistrate to send papers to district attorney his duty. SECTION XXVIII. Duty of officer and magistrate as to persons publicl}* intoxicated — exclusive jurisdiction — fine or punishment for offense — penalty if officer or magis- trate neglect his duty. SECTION XXIX. Selling or giving to intoxicated person forbidden — penalty therefor. SECTION XXX. Duty of magistrates and overseers of the poor when complaint made of habitual intoxication against husband or wife, etc., — notice to dealers — selling after notice — penalties therefor — how recovered. SECTION XXXI. * Sales made as prohibited under last section subjects vendor to a fine and loss of license — sale to paupers forbidden — penalty and punishment therefor. SECTION XXXII. Liquors not to be sold on election days, etc., — penalties and punishment. SECTION XXXIII. Penalties, except under sections 15 and 19, to be sued for and recovered by and in the name of the overseer of the poor — exceptions to the rule — disposition of the money recovered. SECTION XXXIV. Where dealer's bond to be filed. SECTION XXXV. Who to prosecute for the breach of condition of bond. SECTION XXXVI. On conviction or judgment for violations, magistrate to forward statement to next court of sessions. SECTION XXXVII. Duty of the court in the premises. SECTION XXXVIII. Person whose license revoked not to receive another in three years. 8 CONTENTS. SECTION XXXIX. Damage sustained by reason of unlawful sale may be recovered — how and by whom. SECTION XL. Duties of courts and grand juries as to offenses under this act and for adultera- tion, etc., — the latter made misdemeanors^punishment. SECTION XLI. If proper party fails to prosecute, any person may in his name. SECTION XLII. Incorporated companies carrying persons or property for hire not to employ drunkards or retain them in their employ in places of responsibility — penalty therefor. SECTION XLIII. Defendants in suits on bonds not to be allowed jail liberties. SECTION XLIV. Revised Statutes and acts inconsistent with act of 1857 repealed. SECTION XLV. Ale and beer — provisions of excise laws applies to — persons other than hotel keepers may be licensed to sell. SECTION LXVI. Metropolitan police district act repealed — act of 1857 extended. SECTION XLVH. Sale between one and five o'clock a. m. prohibited, and business places to be closed — also on Sundays and election days — duty of officers to enforce — traveler's rights reserved. SECTION XLVm. No clerk for excise boards in towns, etc., — compensation of commissioners in towns, etc., — disposition of excise moneys in towns — in cities — books of minutes and disposition of. SECTION XLIX. Conviction for any violation annuls license — boards of excise to entertain com- plaint — their duties and powers. SECTION L. The law of 1873 not applicable where local prohibition prevails. CONTENTS. 9 SECTION LI. Being intoxicated while employed upon a railroad, etc., made a misdemeanor — fine and punishment — Penal Code enactment on subject — also Code of Criminal Procedure — exclusive jurisdiction of special sessions for certain violations of the excise laws. SECTION LII. Hotel license may be granted without license to sell liquor — bond required. SECTION LIE If excise money exceed support of poor it may be applied to town expenses. SECTION LIV. Liquor not to be sold where court is being held. SECTION LV. Polling places in cities and villages not to be where liquor is sold — lager, ale, beer, wine and liquors not allowed in room used for election. SECTION LVI. Liquors not to be used in poor-houses, jails, prisons, etc., as a beverage — medi- cal officer may prescribe its use. SECTION LVII. Violation of foregoing section a misdemeanor. SECTION LVIII. Minors under 14 not to be allowed in saloons and certain places of amusement where liquors are sold without parent, etc. , — violation a misdemeanor. SECTION LIX. Persons allowing children under sixteen to play games, etc., where liquor sold guilty of misdemeanor — such children may be detained as witnesses. SECTION LX. Children not allowed in dance-houses, etc., without parent, etc. SECTION LXI. Boys under sixteen and girls under fourteen in certain company and places where liquor sold liable to arrest as vagrants — may be committed, etc. SECTION LXII. Who are vagrants. SECTION LXIII. Who are disorderly persons. SECTION LXIV. Voluntary intoxication no excuse for crime. 10 CONTENTS. SECTION LXV. Liability of physicians practicing while intoxicated. SECTION LXVL Certain acts of intoxicated physician a misdemeanor. SECTION LXVH. Adulterations of liquors, wines, etc., a misdemeanor. SECTION LXVIII. Selling certain adulterated articles a misdemeanor. SECTION LXIX. Civil damage law — damages to person or property, etc., by reason of intoxica- tion recoverable — who liable and who may recover. SECTION LXX. Part of civil damage law — method of recovery. SECTION LXX I. Wrong done to property, rights or interests of another — person injured, or his representative, may recover damages of wrong-doer. SECTION LXXII. City and town of Newburgh. SECTION LXXIII. Orange county. SECTION LXXIV. City of Kingston. SECTION LXXV. City of Poughkeepsie. SECTION LXXVL City of Yonkers. SECTION LXXVH. City of Lockport. SECTION LXXVIII. City of Rochester. SECTION LXXIX. City of Troy. SECTION LXXX. City of Brooklyn. CONTENTS. 11 SECTION LXXXI. City of Buffalo. SECTION LXXXII. Town of Haverstraw. SECTION LXXXIII. Village of Medina. SECTION LXXXIV. Allegany county. SECTION LXXXV. Richmond county. SECTION LXXXVI. City of New York. SECTION LXXXVII. Laws applicable to incorporated villages under general act — intoxicated per- sons classed as disorderly — trustees may arrest. CHAPTER II. GENERAL SYNOPSIS OF THE POWER, DUTIES AND OBLIGA- TIONS OF COMMISSIONERS OF EXCISE, OVERSEERS OF THE POOR AND HOTEL KEEPERS. SECTION I Commissioners of excise. section n. Overseers of the poor. SECTION III. Hotel keepers. CHAPTER III. THE PRINCIPLES OF LAW RELATING TO EXCISE AND MAT- TERS CONNECTED THEREWITH. SECTION I. Commissioners of excise — election, appointment, qualifications, powers and duties. 12 C< >XTENTS. SECTION II. Licenses. SECTION III. Convictions and misdemeanors. SECTION IV. Actions for penalties by overseers of the poor — by other persons — how brought ' and maintained. SECTION V. Actions on bonds. SECTION VI. Indictments. SECTION VII. Ale and beer. SECTION VIII. Constitutionality of the excise law. SECTION IX. Intoxication and its effects on crime. SECTION X. Hotels and their keepers. SECTION XI. Practice. SECTION XII. Miscellaneous provisions and effect of statutes. CHAPTER IV. CIVIL DAMAGE ACT. SECTION I. Previous statutes. SECTION II. A new cause of action created. SECTION in. Jurisdiction of justices of the peace. CONTENTS. 13 SECTION IV. Constitutionality. SECTION V. When cause of action will not exist under. SECTION VI. Joint action against separate vendors will not lie. SECTION VII. Several injured, recovery proportionate. SECTION VIII. Action for loss of means of support. SECTION IX. Injury to person or property. SECTION X. Liability of owner of premises. SECTION XL License to sell no defense. SECTION XII. Innocense and good faith no defense. SECTION XIII. Exemplary damages. SECTION XIV. Mitigation of damages. CHAPTER V. INNKEEPERS. SECTION I. Statutes relating to the rights, duties and liabilities as well as for the protection of innkeepers. SECTION II. Hotels and hotel keepers. SECTION in. Rights of innkeepers. CONTENTS. SECTION IV. Duties of innkeepers. SECTION V. Lien of innkeepers. SECTION VI. Guests. SECTION VII. Liability of innkeepers for loss of money, jewels, etc SECTION VIII. Liability for loss of guest's baggage and effects generally. SECTION IX. Enforcement of the liability. INTRODUCTION. On the passage of the Revised Statutes in 1827 and 1828, the legislature re-enacted and adopted an excise law, most of which had in one form or another been in existence from the establishment of the State government. By the Revised Statutes, the supervisor and two justices of the peace were excise commissioners : they were author- ized to grant hotel and grocers' licenses ; the fee was from live to thirty dollars ; good moral character, sufficient ability and ample accommodations were required. 'i he bond was for $125, that the person licensed would not suffer his house to become disorderly, nor allow cock-fighting, playing with cards or dice, nor keep a gaming table of any description. For a failure to keep the necessary requirements of a hotel, he forfeited five dollars, to be recovered by the overseer of the poor. Then, as now, he was to keep up a sign under a penalty, and no person who did not have a hotel license should put up a hotel sign. * No persons but lodgers or travelers were to be trusted more than $1.25, and Securities for such debts were void. Grocery keepers were to give bonds that they would live up to the law requirements. A line of twenty-five dollars for selling by measure without a license, and to minors, ser- vants, etc. The penalties for offenses were to be recovered by the overseer of the poor, unless otherwise provided. Breaches of bonds were to be prosecuted as now ; records of convictions were to be sent to the court of sessions, and they to revoke a license. All offenses against the act were made misdemeanors. Methiglen, currant wine, cherry wine and cider were ex- empted from the operation of the law. The amendments 16 INTRODUCTION. were slight until 1S45, when the several towns of the State were given the privilege of determining by ballot whether license should be granted or not in the several towns. It was slightly amended in 1846. In 1854, the law which is now in existence was passed in substance. The right was given to any person to prosecute for the penalty if the proper parties did not do so, but the prosecutor was com- pelled to give security for costs. In 1857 the former stat- utes were repealed, and chapter 628 of that year enacted in their place. This act created the county commissioners of excise, which existed until 1874. This excise law has been amended by adding to, or taking from, until it has become what it now is, as fully compiled in Chapter I. In subse- quent chapters the decisions of the courts of this State upon every question of importance are fully and carefully examined, discussed and cited, to which is added a chapter on the duties and liabilities of hotel keepers to their guests and the public at large, together with the special statutes enacted for their benefit. CHAPTER I. STATUTES. Section 1. At the annual town meetings in the several towns in this State, held next after the passage of this act, there shall be elected, in the same manner as other town officers are elected, three commissioners of excise, who, while acting as such commissioners, shall not hold either of the offices of supervisor, justice of the peace, or town clerk, the office of president or trustee of any incorporated village, and who shall compose the board of excise of their respective towns, and discharge the duties imposed upon the super- visor and justices of the peace of towns, and the president and trustees of incorporated villages thereof, by chapter 175 of the Laws of 1870, and laws amendatory thereof and sup- plementary thereto ; and shall be entitled to receive com- pensation at the rate of three dollars per day, while in session, as a board of excise, which shall be a town charge ; except in the counties where the moneys received by said board are paid into the county treasury as hereinafter pro- vided, when it shall be a county charge. The commissioners first elected under this act shall be classified by lot, under the superintendence of the supervisor, the justice of the peace having the shortest time to serve, and the town clerk, or a majority of such officers, who shall meet at the office of the town clerk of their respective towns, for such pur- pose, within ten days after such town meeting, and the per- Note. — Tlie numbers given at the bottom of some of the sections allude to the sections of the Excise Law contained in Volume 1 of the Revised Statutes, published in 1829, covering substantially the same grounds as the sections num- bered. Every offense under those statutes was made a misdemeanor by section 25. See section 3, chapter 3. 2 18 EXCISE AND HOTEL LAWS. sons drawing for one, two and three years shall serve for such terms respectively ; and annually thereafter one com- missioner of excise shall be elected for a term of three years. Vacancies occurring in said boards, from any cause, shall be tilled by appointment by the supervisor and justices of the peace of said town, or a majority of them, until the next annual town meeting, when such vacancy shall be filled by election. (Section 1, chapter 444, Laws of 1874.) *L § 2. The said commissioners shall be voted for upon a separate ballot, which shall be deposited in a separate box, marked "excise," and before entering upon the duties of their offices shall take and subscribe the constitutional oath of office and file the same with the town clerk, and shall execute a bond to the supervisor thereof, to be approved by him in double the amount of the excise moneys of the pre- ceding year, conditioned for paying over to him or his im- mediate successor in office, within thirty days after the receipt thereof, all moneys received by them as such excise commissioners. Said moneys shall be disposed of,as directed by the town board, except in those counties where the sup- port of the poor is a county charge where such excise money shall be paid into the county treasury, subject to the control of the board of supervisors. (Section 2, chapter 444, 1874.) § 3. Nothing in this act shall affect the provisions of any special act in so far as the same provides for any special dis- position of excise moneys or fines. (Section 3, chapter 444, 1874.) £ 4. The mayor of each of the cities, except in the cities of N*ew York, Brooklyn and Poughkeepsie, shall appoint the commissioners of excise in their respective cities within ten days after the passage of this act ; but in the cities of New York, Brooklyn and Poughkeepsie, the mayor shall nominate tin*'*' good and responsible oil izens to (lie board of aldermen of such cities respectively, who shall confirm or reject such nominations. In case of the rejection of such nominees, or any of them, the mayor shall nominate other prisons as aforesaid, and shall continue so to nominate, until the nominations shall be confirmed. The present com- missioners of excise for the metropolitan district and the EXCISE AND HOTEL LAWS. 19 •commissioners for the counties shall continue to exercise the duties of the office until such appointments, or some one of them, shall be appointed in such cities respectively, .as herein provided. Any one or more of the commissioners so appointed shall have the power to act as a board of excise for the city in which he shall be appointed, until the others shall be duly appointed. Commissioners of excise in cities shall hold their offices for three years, and until others shall be appointed in their places, and shall receive a salary not to exceed $2,500 a year each, to be fixed by the mayor and .common council of their respective cities, and shall be paid -as other city officers are paid. (Section 2 of chapter 175, 1870, as amended by chapter 145, 1879.) Provided, that in the city of New York the commissioners of excise shall re- ceive a salary not to exceed $5,000 a year each, to be fixed by the board of estimate and apportionment of said city, who shall annually fix such amount as may be necessary for hire of employees, rent and other necessary expenses of said board of commissioners, which amount shall be paid out of the moneys received for licenses, and said commis- sioners shall receive no other compensation or emolument for services as commissioners ; and provided further, that all excise moneys hereafter derived from licenses for the sale of intoxicating liquors by said commissioners, except as above provided, shall, from time to time and in sums accord- ing to their discretion, be appropriated by the board of ap- portionment and estimate of said city by resolution of the said board to whatever benevolent, charitable or humane institutions may seem to such board deserving or proper; but no such resolutions shall be valid unless adopted by the vote of a majority of the said board ; and the comptroller of said city is hereby authorized and directed to draw his warrants in favor of the corporations, societies or charitable institutions respectively mentioned in such resolutions ac- cording to the tenor thereof ; and the chamberlain of said ■city shall pay such warrants out of the said moneys received for licenses, which are hereby directed to be deposited with and. paid over to him within thirty days after it is received. (Chapter 549, 1873, as amended by chapter 642, 1874.) On the first Monday of April in every third year hereafter, the 20 EXCISE AND HOTEL LAWS. mayor and board of aldermen shall proceed to appoint, in the manner above described, persons qualified as aforesaid, to be such commissioners of excise in their respective cities for the next three years, commencing on the first day of May in that year, and shall, from time to time, as often as vacancies shall occur, appoint persons qualified as aforesaid to fill the unexpired term of any commissioners who shall die, resign, remove from the city, or be removed from office. Such commissioners of excise in cities shall be removed for any neglect or malfeasance in office, in the same manner as provided by law for the removal of sheriffs. (Section 2, chapter 175, 1870, as amended by chapter 145, 1879, and by chapter 549, 1873, as amended by chapter 642, 1874.) The foregoing section 4 is a compilation of several acts and their amendments, which, without their union as above, would not be clearly understood. Section 2 of chapter 175, 1870, was amended in 1873 by chapter 549, and again in 1874 by charter 642, but in a con- fused way by amendment of amendments. The legislature, April 4, 1879, probably overlooking the amendments of 1873 and 1874, went back to the original act of 1870 and amended it without regard to the former amendments ; subsequently discovering the error, it enacted, June 4, 1879, a declaratory act, which we append as section 5, which has relation solely to the above-mentioned acts and their amendments. The amendments of 1873 and 1874 introduced a provision having reference solely to the city of New York, commencing with the word "provided" and ending with the words "within thirty days after it is received," while the amendment of 1879 merely added " Poughkeepsie " to the list of ex- cepted cities. Declaratory Act. § 5. Nothing contained in chapter 145 of the Laws of 1879, entitled ' 'An act to further amend chapter 175 of the Laws of 1870, entitled 'An act regulating the sale of intoxicating liquors,' " shall be construed to affect the provisions of chapter 642 of the Laws of 1874, entitled "An act declara- tory of and to amend chapter 549 of the Laws of 1873, en- titled 'An act to amend an act entitled 'An act regulating the EXCISE AND HOTEL LAWS. 21 sale of intoxicating liquors,' passed April 11, 1870,' and the act entitled 'An act to suppress intemperance and to regulate the sale of intoxicating liquors,' passed April 16, 1857.' " Passed June 23, 1874. (Chapter 472, 1879.) By chapter 377 of the Laws of 1880, entitled "An act in relation to the government of the city of Brooklyn," the method of appointing excise commissioners, or, "commis- sioners of excise," as they are there called, also the com- missioners of police and excise, is pointed out. (See section 80, post.) § 6. The boards of commissioners of excise in the cities of this State, having a population of over 300,000 inhabit- ants, shall, if all other requirements of the law have been complied with, have power to grant license to sell strong or spirituous liquors, ale, wine or beer, to be drank on the premises, to be named in the application for such license, to any person or persons having a good moral character, whether or not they propose to keep an inn, tavern or hotel, provided that no such license shall be granted unless the said commissioners shall be satisfied, upon examination, that the applicant therefor is a person of good moral char- acter, and that a license may properly be granted for such sale in the place proposed. (Section 1, chapter 340, 1883.) § 7. Any such board shall have, at all times, discretionary power to permit any person or persons, to whom a license may have been granted in respect of any specified premises, to remove to any other place within jurisdiction of the same board during the period covered by such license, and there to continue the conduct of business under such license, in the same manner as if no removal had been made ; pro- vided always, that such discretionary power shall not be exercised until and unless all the requirements of law to be observed upon the granting of an original license shall, upon said application for removal, be complied with and fulfilled in every respect. (Section 2, chapter 340, 1883.) § 8. No person or persons having a license under this act, nor any assistant, agent, employee or servant of any such person or person so licensed, shall be arrested for any alleged violation of any provision of any excise law by any peace officer or other person, unless a warrant therefor, 22 EXCISE AND HOTEL LAWS. based on affidavit, shall have first duly issued according to> law, except and provided that in case of any violation of any provision of any excise law between the hour of one o'clock Sunday morning and the hour of twelve o'clock Sunday night, in presence of any officer or person author- ized to make arrests for violation of law, such officer or person may forthwith, and without warrant, make arrest of the person or persons so violating any provision of any excise law. Any officer or person authorized to make ar- rests for violation of law may arrest, without warrant, any person who, in the presence of such officer or other person authorized to make arrests, may be engaged in the sale of any intoxicating liquor without a license. (Section 3, chap- ter 340, 1883.) § 9. No city of this State having a population of more than 300,000 inhabitants, shall hereafter be subject to, or be embraced within, any provision of the sixth section of the act, chapter 628 of the laws of 1857, entitled "An act to suppress intemperance and to regulate the sale of intoxi- cating liquors," passed April 16, 1857. (Section 4, chapter 340, 1883. § 10. Any person who shall, without a license, sell or give away any strong or spirituous liquors, ale, wine or beer, to be drank upon the premises, shall be guilty of a misdemeanor ; and nothing in this act contained shall alter or affect the provisions of existing laws r touching the sale or giving away of intoxicating liquors to be drank urjon the- premises, or the prohibition thereof in the cases mentioned in said laws, and the penalties prescribed therefor, except as provided in section four of this act, and such provisions of existing laws as are applicable to persons who might thereby be licensed to sell intoxicating liquors to be drank upon the premises shall be applicable to persons who may be licensed under this act, except as such laws are modified by the terms of this act, (Section 5, chapter 340, 1883.) The last five sections constitute chapter 340 of the laws of 1883, and are applicable only to the cities of New York and Brooklyn, as no city beside them in this State has, or is likely to have, more than 300,000 inhabitants for some years to come. EXCISE AND HOTEL LAWS. 23 The enacting clause of said act reads as follows : "An act to regulate the sale of intoxicating liquors in cities having a population of over 300, 000 inhabitants," passed April 30, 1883. § 11. The commissioners of excise shall meet in their respective cities, villages and towns, on the first Mon- day of May in each year, for the jjurpose of granting li- censes as provided by law, and at no other time for that purpose, except upon application for license made in good faith, in any town or village, and in such case not oftener than once in each month. In cities they shall meet on the first Monday of each month, and as often as they shall deem necessary. All licenses hereafter granted shall expire on the first Monday of May succeeding the date of such granting, except in the cities of New York, Brooklyn and Rochester, and all applicants where such license is granted for a period of less than one year, shall pay a pro rata amount of the license fee established for their place of busi- ness by the commissioners of their respective cities, towns and villages ; and in said cities of New York, Brooklyn and Rochester, all such licenses shall expire at the end of one year from the time they shall be granted. (Section 3, of chapter 175, 1870, as amended by chapters 164 and 466 of the Laws of 1881, and by chapter 126 of the laws of 1882.) The law of 1870— as it stood until 1881— left a time when there might be no license in force. It provided that licenses should be for one year from the first Monday of May. There is, however, more than one year, at times, from the first Monday of May to the first Monday of May in the succeeding year. Chapter 164 of the Laws of 1881, rectified, this defect by omitting to limit the license to one year ; but by chapter 466 of the same year, the length of a license was again limited to one year in the cities of New York and Brooklyn ; and by chapter 126 of the Laws of 1882, the legislature added Rochester to New York and Brooklyn. It would be interesting to know why this is so. It took four chapters to fix a time for the meeting of the board and the duration of license, and it seems there should be one more amendment so there will not be a time of no license, or the hotel and saloon keepers of said cities will be com- 24 EXCISE AND HOTEL LAWS. pelled to take out a six-day license to avoid being law breakers, where one year will not extend from the first Monday of May in one year to the first Monday of May in the succeeding year, and thus necessitate another meeting of the board for that purpose. Section four of the act of 1857, contemplating this, kept the license in force for ten days in all parts of the State, except New York city, and there for fifty days. § 12. The board of excise in any city, town or village shall have the power to giant license to any person or persons of good moral character, who shall be approved by them, per- mitting him or them to sell and dispose of, at any one named place within such city, town or village, strong or spirituous liquors, wines, ale and beer in quantities less than five gal- lons at a time upon receiving a license fee, to be fixed in their discretion, and which shall not be less than thirty dol- lars, nor more than $150, in any town or village, and not less than thirty dollars, nor more than $250, in any city. Such licenses shall only be granted on written application to the said board, signed by the applicant or applicants, specifying the place for which license is asked, and the name or names of the applicant or applicants, and of every person interested or to be interested in the business to au- thorize which the license shall be used ; and the license shall be kept posted, by the person or persons licensed, in a con- spicuous position in the room or place where his or their sales are made, and shall be exhibited at all times by the person or persons so licensed, and by all persons acting under such license, on demand, to every sheriff, constable or officer, or member of police. Any omission so to display and exhibit such certificate shall be presumptive evidence that any person or persons so omitting to display and ex- hibit the same has and have no license. The said board of excise shall keep a complete record of the names of all per- sons licensed, as herein provided, with a statement of the place licensed, and license fee imposed and paid in each case, which record they shall at all times permit to be seen in a convenient place at their principal office in any city, or at the clerk's office in any town or village. Persons not licensed may keep, and, in quantities not less than five gal- EXCISE AND HOTEL LAWS. 25 Ions at a time, sell and dispose of strong and spirituous liquors, wines, ale and beer, provided that no part thereof shall be drunk or used in the building, garden or inclosure communicating with, or in any public street or place con- tiguous to, the building in which the same be so kept, dis- posed of, or sold. (Section 4. chapter 175 of the Laws of 1870, as amended by section 2, chapter 549, 1873.) At the same session of the legislature that the above sec- tion was amended (1873) an act was passed (chapter 249) making the trustees of villages the commissioners of excise in such villages ; therefore the above section alludes to vil- lage boards. Chapter 249, 1873, was superceded, as we view it, by the adoption of section 1, chapter 444, of the Laws of 1874. (See section 1, ante, page 1.) The following four sections, which are sections 2, 3, 4 and 5, of chapter 628 of the Laws of 1857, are inserted because it is probable that some minor portions of each are not entirely superceded by the laws of 1870 and 1873. The part of section 2 of that act that seems not to be ''inconsistent or in conflict' ' with any other law passed subsequently, that is from the first period { .) to and including the word "garden." The first part of the section is disposed of by being in con- flict with chapter 126 of the Laws of 1882 (ante, section 11), while the latter part of the section is superceded by section 2, chapter 549, 1873 {ante, section 12) : Section 3 of said act of 1857, seems so far to be in force as to require the commissioners to "keep a book of minutes of all their proceedings, and every resolution passed by them, to be verified by their signatures," while the balance of the section would probably be held to be "inconsistent with" section 4 of chapter 175, 1870, as amended by section 2, chapter 549, 1873. (Ante, section 12.) Section 4 of said act is also probably in force, so far that the licenses shall be signed by the commissioners, and that no license shall be issued until all preliminaries are complied with, while the balance is also disposed of by the act of 1882. Section 5 of said act, down to the first period (.), is re- pealed by a contrary statute, which declares that the com- missioners shall not keep a clerk. ( See chapter 175, 1870; 26 EXCISE ANT) HOTEL LAWS. post section 48. ) While the next sentence directs minutes to be kept, in which all names of applicants, a list of licenses granted, and the names of the sureties on the bonds, shall be given. This will necessitate making a secretary of one of the board. Sections 3 and 5 seem to be so far "inconsistent" with each other as to cause the commissioners to keep two books of minutes, one to be filed with the town clerk, and the other with the county clerk. These sections, however, were in relation to the action of commissioners of excise of counties, who have been displaced by commissioners of towns, and it is a matter of some doubt as to how much, and what portion, of said five sections are still applicable under the statute as it now stands. Section of the act of 1857, directs the commissioners to be satisfied of the good moral character of the applicant, while section 2 of chapter 549, 1873, as amended, does not give them in terms that discretion ; but as the two sections do not seem to be entirely inconsistent with each other, we assume, in the absence of any decision upon the subject, that the two clauses should be construed together. There are several parellel propositions in these and other sections, with subsequent amendments, and it is the safest way for the practitioner or commissioners to assume them to be each in force and thus keep within the letter of the law until the courts shall decide upon the spirit, as they have in some particulars, as will appear hereafter. § J 3. The commissioners of excise shall meet in their re- spective counties at the place aforesaid, on the third Tues- day of May in each year, and on such other days as a majority of the commissioners shall appoint, not exceeding ten days in any one year, and, in the city of New York, not exceeding fifty days, for the purpose of granting licenses as hereinafter prescribed. They shall have power to grant licenses to keepers of inns, taverns or hotels, being resi- dents of the town or city where such inn, tavern or hotel is proposed to be kept, to sell strong and spirituous liquors and wines to be drank in their houses respectively ; and to store keepers being such residents, a license to sell such liquors and wines in quantities less than five gallons, but not EXCISE AND HOTEL LAWS. 27 to be drank in their shops, houses, out-houses, yards or gar- dens, and they shall have power to determine the sum to be paid for a license by each person applying, which sum shall be as follows : In towns and incorporated villages not less than thirty dollars nor more than $100, and in cities not less than thirty dollars nor more than $250. No license shall be granted to any person or lirm to sell in more than one place. (Section 2, chapter 628, 1857.) * 2, 4. Time of meeting changed by section 11. § 14. They shall keep a book of minutes of all their pro- ceedings in which shall be entered every resolution passed by them granting a license to any person, with the sum re- quired to be paid, which minutes shall be verified by their signatures and filed with the town clerk of the town for which such license shall be granted, and in the several cities of the State, with the city clerk, within eight days thereafter. (Section 3, id.) * 3. § 15. All licenses shall be signed by the commissioners granting the same. They shall not be issued until the re- quirements fixed by the board shall have been complied with [when issued they shall be in force, unless revoked, until ten days after the third Tuesday in May next succeed- ing the granting of such license, and, in the city of New York, until fifty days thereafter.] (Section 4, id.) *3. The portion of above section in brackets has been super- ceded. § 16. Each of said boards of commissioners of excise, shall have the right to appoint a clerk for the time they may be actually in session, in accordance with the provisions of this act, such clerk to receive the same compensation as is allowed by this act to each of the commissioners. They shall keep a book of minutes of proceedings, on which shall be entered the names of all applicants for license, and they shall also enter on said book a list of all licenses granted, with the names of the parties to whom the same are granted, and the names of the securities to the bond required in each case The said book of minutes shall be deposited in the 28 EXCISE AND HOTEL LAWS office of the county clerk. No fee or reward shall be taken by any board of excise, or by any member thereof, or by any clerk thereof, for any license to keep an inn, tavern or hotel, or to sell strong or spirituous liquors, or for any ser- vice required of such board ; nor shall any compensation be retained by any such board, or by any member thereof, or by any clerk thereof, out of the excise money, but the whole amount thereof shall be paid over to the county treasurers for the use of the \)oor in the several counties ; but the persons composing such board of excise shall be entitled each to receive the sum of three dollars per day for services actually performed, to be allowed and paid in like manner as other county charges, and no other or greater compensation shall be allowed. The expenses of procuring necessary books for minutes, and necessary blanks, when actually incurred, shall be audited and paid in like manner as other county charges. (Section 5, id.) The light to appoint a clerk is repealed.. (See section 48.) We have heretofore alluded to section 6 of the laws of 1857, which follows as our next section, and which has been held by the Court of Appeals as still in force in some par- ticulars, but not in others, without giving very lucid reasons why one part is not still in existence as well as another. As it is our purpose to present the authorities particularly applicable to each section after the statutes have been given, we shall not here give citations, but simply such of our con- clusions as we think will assist in understanding the some- what mixed legislation which we find scattered through the statutes of the last twenty-five years ; for instance, it is held that the petition of twenty freeholders is not necessary in an application for a license, under the statute, as amended in lb73 (ante, section 12), because the said statute does not name that as one of the preliminary requirements ; but it is also held by the same high authority, that section 6 of the law of 1857 is still in force, to the extent that such a license as is mentioned in section 2 of chapter 549, 1873, means hotel licenses, and that the accommodations enumer- ated in section 6 of the law of 1857, must also be held as contemplated by the act of 1870, as amended in 1873 (ante, section 12). The judge writing the opinion in the case al- EXCISE AND HOTEL LAWS. 29 hided to, seemed to see harmony possible in the two acts of 1857 and 1870 and their amendments, except as to the peti- tion of twenty freeholders. We hope our readers will be equally as happy in their examinations. We are of the opinion, however, that the ordinary mind will not see this as clearly as the judicial, and therefore venture the remark that, as the excise law affects the people as much or more than any law upon our statute books, that it is but justice to them that it should be made as plain as possible, to the intent that the people should be able to understand and profit by it. We will endeavor to give the judicial construc- tion of these several statutes in their proper plaoe. The act of 1857 being still in force, we will give the balance of that act in this connection, which, at the time of its pass- age, with the exception of some local statutes, comprised the complete excise law of this State, and in 1870 the statute of 1857, as engrafted upon the law of 1870, became the ex- cise law for the whole State. In now giving the balance of that act, it will necessitate the postponement of the several subsequent enactments until the balance of the act of 1857 if given. Were it possible to so weave the several acts together as to form an orderly and reliable law, cover- ing the whole ground of excise legislation, we should be glad to do so ; but it is impossible, and, therefore, the neces- sary incongruity of arrangement must be accounted for in the disorderly state of our statutes as we find them. § 17. License shall not be granted to any person to sell strong and spirituous liquors and wines to be drank on the premises of the person licensed, unless such person proposes to keep an inn, tavern or hotel, nor unless the commissioners are satisfied that the applicant is of good moral character, that he has sufficient ability to keep an inn, tavern or hotel, and the necessary accommodations to entertain travelers, and that an inn, tavern or hotel is required for the actual accom- modation of travelers, at the place where such applicant resides or proposes to keep the same ; all which shall be expressly stated in such license. And no such license shall be granted except on the petition of not less than twenty re- spectable freeholders of this State residing in the election dis- trict where such inn, tavern or hotel is proposed to be kept, 30 EXCISE AND HOTEL LAWS. by them duly signed and verified by the oath of a subscrib- ing witness, and not then unless, in the opinion of the commis- sioners, such inn, tavern or hotel is necessary or proper; and not more than one license shall be granted on the memorial of the same petitioners or any of them. All petitions upon which such licenses shall be granted shall be tiled with the county clerk within eight days. And in case the commis- sioners shall grant any license contrary to the provisions of this act, they shall be deemed guilty of a misdemeanor. (Section 6, chapter 628, 1857.) *6 The petition of twenty freeholders being no longer neces- sary their petitions need not be filed as stated above. § 18. Nor shall such license to keep an inn, tavern or hotel be granted until the applicant shall have executed and de- livered to the board of commissioners of excise herein pro- vided a bond to the people of this State, in the penal sum of $250, with sufficient sureties, who shall duly justify in the sum of $500, to be approved by the board of commissioners with a condition that such applicant, during the time that lie shall keep any inn, tavern or hotel, will not sulfer it to be disorderly, or suffer any gambling, or keep a gambling table of any description, within the inn, tavern or hotel, so kept by him, or in any out-house, yard or garden belonging thereto. (Section 7, id.) *7. § 19. Every keeper of an inn, tavern or hotel, in any of the towns or villages of this State, shall keep in his house at least three spare beds for his guests, with good and suffi- cient bedding, and shall provide and keep good and sufficient stabling, and provender of hay in the winter, and hay or pasturage in the summer, and grain for four horses or other cattle more than his own stock, for the accommodation of travelers ; and every keeper of an inn, tavern or hotel in the cities of this State shall keep at least three spare beds, and the necessary bedding, for the accommodation of travelers. For every neglect or default in having either of the articles herein required, such keeper shall forfeit ten dollars, to be recovered by the overseers of the poor for the use of the poor. (Section 8, id.) *8. EXCISE AND HOTEL LAWS. The above section is in force, except in the excepted cities of New York and Brooklyn. (See ante, section 6.) § 20. Every inn, tavern or hotel keeper licensed under the provisions of this act shall, within thirty days after obtain- ing his license, put up a proper sign on or adjacent to the front of his house, with his name thereon, indicating that he keeps an inn, tavern or hotel ; and he shall keep up such sign during the time that he keeps an inn, tavern or hotel. For every month's neglect to keep up such sign he shall forfeit ten dollars. (Section 9, id.) *9. Some peculiar questions may arise under this section, to which we will call attention in future. >J 21. No inn, tavern or hotel keeper, who shall trust any person other than those who may be lodgers in his house, for any sort of strong or spirituous liquors or wines, shall be capable of recovering the same by any suit. All securi- ties given for such debts shall be void ; and the inn, tavern or hotel keeper taking such securities, with intent to evade this provision, shall forfeit double the sum intended to be secured thereby. (Section 10, id.) * 11, 18. ^ 22. In all licenses that may be granted (excepting to inn, tavern or hotel keepers) to sell strong or spirituous liquors or wines, in quantities less than live gallons, there shall be inserted an express declaration that such license shall not be deemed to authorize the sale of any strong or spirituous liquor, or wine, to be drank in the house or shop of the person receiving such license, or in any out-house, yard or garden appertaining thereto, or connected therewith. (Section 11, id.) *12. For ale and beer licenses see section 45. £ 28. Such licenses shall not be granted, unless the com- missioners are satisfied that the applicant is of good moral character, nor until such applicant shall have executed a bond to the x^eople of this State in the penal sum of 8500, with sufficient sureties, who shall duly justify in the sum of *1,000, to be approved by the commissioners, and to be delivered to the commissioners, conditioned that during the 32 EXCISE AND HOTEL LAWS. term for which his license shall be granted he will not suffer his place of business to become disorderly ; that he will not sell or suffer to be sold, any strong or spirituous liquors or wines to be drank in his shop or house, or in any out-house, yard or garden appertaining thereto ; and that he will not suffer any such liquor, sold by virtue of such license, to be drank in his shop or house, or in any out-house, yard or garden, belonging thereto ; and whenever any person is seen to drink in such shoj) or house, out-house, yard or garden, belonging thereto, any spirituous liquors or wines, forbidden to be drank therein, it shall be prima facie evidence that such spirituous liquor or wines were sold by the occupant of such premises, or his agent, with the intent that the same should be drank therein. On any trial for the offense last aforesaid, such occupant or agent may be allowed to testify respecting such sale. (Section 12, id.) * 12, 13. A portion of the above section has been declared uncon- stitutional. (See post, chapter 3, section 8.) § 24. Whoever shall sell any strong or spirituous liquors or wines, in quantities less than five gallons at a time, with- out having a license therefor, granted as herein provided, shall forfeit fifty dollars for each offense. (Section 13, id.) * 15. § 25. Whoever shall sell any strong or spirituous liquors or wines, to be drank in his house or shop, or any out-house, yard or garden appertaining thereto, or shall suffer or per- mit any such liquors or wines sold by him, or under his direction or authority, to be drank in his house or shop, op in any out-house, yard or garden thereto belonging, with- out having obtained a license therefor as an inn, tavern or hotel keeper, shall forfeit fifty dollars for each offense. (Section 14, id.) *16. § 26. No inn, tavern or hotel keeper, or any other person licensed to sell any strong or spirituous liquors or wines, shall, either personally, or by his wife, servant, employee or other agent, sell or give any such liquors or wines to any Indian or apprentice, knowing or having reason to believe him to be such, or within the knowledge of such EXCISE AND HOTEL LAWS. 33 agent, without the consent of his master or mistress, nor to any minor under the age of eighteen years, without the consent of his father or mother, or guardian. Whoever shall, either personally or by his wife, servant, employee or other agent, offend against either of these provisions, shall forfeit ten dollars for each and. every offense, to be recov- ered by the master of such apprentice or servant, or by the parent or guardian of such minor ; and any person who shall, either personally or by his wife, servant, employee or other agent, sell or give away any strong or spirituous liquors, ale, beer or wine to any Indian in this State, or shall sell any beer, ale, wine, or any strong or spirtuous liquor to any minor under the age of fourteen years, know- ing or having reason to believe such minor to be under such age, shall be deemed guilty of a misdemeanor, and, on con- viction, shall be liable to a line of twenty-five dollars for each and every offense. (Section 15, 1857, as amended by chapter 420 of the Laws of 1877.) * 18. The amendment of this section consisted chiefly in pro- hibiting the wife, servant or employee from selling the same as the proprietor ; and also making the knowledge of the agent necessary as to the fact that the party receiving the liquor is one of the prescribed persons ; and also prohib- iting any person, by wife, servant, employee or other agent, from selling or giving away any strong or spirituous liquors, ale, beer or wine, to any Indian or minor under fourteen years of age, with knowledge, etc. Knowledge, or intent to violate must be shown. § 27. It shall be the duty of every sheriff, under-sheriff, deputy-sheriff, constable, marshal, policeman or officer of police, to arrest all persons actually engaged in the com- mission of any offense in violation of this act, and forth- with to carry such person before any magistrate of the same city or town, to be dealt with according to the pro- visions of this act ; and it shall be the duty of such magis- trate, on sufficient proof that such offense has been com- mitted, unless such person shall elect to be tried before such magistrate, and, unless the offense charged be intoxication in any public place, to require a bond to be executed by 3 34 EXCISE AND HOTEL LAWS. such offender in the penal sum of $100, with sufficient sure- ties, conditioned that such offender will appear and answer the charge at the next court of oyer and terminer or ses- sions, to be held in said county, and abide the order and judgment of the court therein, or to commit such offender to the county jail until such judgment of said court, or until he be discharged according to law. And it shall be the duty of the magistrate to entertain any complaint of a violation of this act, made by any person under oath, and forthwith to issue a warrant, and cause such offender to be brought before him, to comply with the provisions of this section ; and such magistrate shall, within ten days, cause such bond, together with all papers and affidavits, with a list of the persons and residences of the complainants and witnesses examined before him, to be delivered to the dis- trict attorney of the county, whose duty it shall be forth- with to prosecute the same. (Section 16, chapter 628, 1857, as amended by section 1, chapter 856 of the Laws of 1869.) The chief amendment of this section was to the effect that, if the offense charged be intoxication in any public place, the prisoner was to be disposed of under section 17 as amended. Under the original act, the sureties to the offender's bond were required to justify ; by the amend- ment, they are to be " sufficient." (See post, chapter 3, section 3.) § 28. It shall be the duty of every such officer, whenever he shall find any person intoxicated in any public i>lace, to apprehend such person and take him before some magis- trate of the same city or town, and if such magistrate shall, after due examination, deem him too much intoxicated to be examined, or to answer on oath correctly, he shall direct said officer to keep him in some jail, lock-up or other safe and convenient place until he shall become sober, and there- upon forthwith to bring him before said magistrate, whose duty it shall then be forthwith to try him for such offense ; and such person, when thus charged with intoxication in any public place, shall not be allowed his election to give a bond, as provided for in section 16 of this act, for his ap- pearance before the next court of oyer and terminer or ses- sions ; and, upon his conviction by the magistrate of such EXCISE AND HOTEL LAWS. 35 offense, such person shall be fined not less than three nor more than ten dollars, in the discretion of the magistrate trying- him, and costs at the same rate as in courts of special sessions, and imprisonment in the county jail, work-house or penitentiary until paid, not, however, less than ten days nor to exceed six months. The offense of intoxication in any public place being hereby declared an offense against the provisions of this act, and punishable as above pro- vided, it shall be the duties of such officers to arrest, or cause to be arrested, all such persons when so intoxicated, and of the magistrate to entertain such complaints and make such examination under the penalty of fifty dollars, with full costs of suit, for any neglect to comply with the provisions of this section. (Section 17, chapter 628, 1857, as amended by section 2, chapter 856, 1869.) This amendment was radical. L T nder the original section the person found intoxicated was to be brought before the magistrate and examined as to the person from whom he received his liquor ; and such intoxication was made a baila- ble offense, punishable, upon conviction, by a line of ten dollars and costs, and imprisonment until paid, not exceed- ing ten days. The farce of making the inquiry as to who sold the liquor is left out of the section as amended, and it gives the justice exclusive jurisdiction to try the offender, no bail being allowed. (Seej£>os£, chapter 3, section 3.) The amendatory act of 1869, of which the last two sec- tions were a part, also declared that the act as amended should not apply to the Metropolitan police district. This was changed by the act of 1870, which extended the act of 1857 as amended and therein adopted, ov^er the whole State. It also enacted (section 4, chapter 856, 1869) a declaratory provision, that ale and beer should be regarded as covered by the act of 1857. That act had previously thereto, when alluding to liquor, denominated it under the term ''strong and spirituous liquors or wines." In 1869 the statute was made to conform to the decisions]of*the courts, that ale and beer were intoxicating. The act of 1869 discriminated, however, for the first time, between hotel and saloon licenses, and allowed licenses to be granted for the sale of ale and beer, for a sum of not less 36 EXCISE AND HOTEL LAWS. than ten dollars. In 1870 this provision was also extended over the Metropolitan police district. The acts of 1870, 1873 and 1877 followed, each recognizing ale and beer to be strong and spirituous liquors. The courts, still in advance of statutory enactments, have, in several in- stances, held cider to be a prohibited " strong and spirituous liquor," and not to be sold without a license. These decisions were at the sessions of several counties, but never reported. The jurors finding, on the proof submitted, that cider was intoxicating. § 29. Whoever shall sell or give away any strong or spir- ituous liquors or wines, or shall suffer any such liquors or wines to be sold or given away, under his direction or au- thority, to any intoxicated person, shall forfeit not less than ten nor more than twenty-five dollars for each offense. (Sec- tion 18, chapter 628, 1857.) £ 3o. It shall be the duty of magistrates and overseers of the poor in any town or city, on complaint and satisfactory proof by a wife, that her husband is an habitual drinker of intoxicating liquors, to issue written notices to all dealers in intoxicating liquors against whom such complaint is made, forbidding the sale or giving of such liquor to such husband for the term of six months from the date of the notice, under a penalty of fifty dollars, with costs, for each and every sale or giving of such liquor, after such notice shall have been given ; to be sued for in her own name and for her own use. It shall be the duty of such magistrates and overseers of the poor to forbid the sale in like manner in all cases when a husband shall make like satisfactory proof concerning the wife, and all the provisions of this sec- tion shall apply the same in either case. It shall be the duty of magistrates and overseers of the poor, when like pjroof is made by a parent concerning a child, who is a minor under the age of twenty-one years, or by a child concerning a parent, to forbid the sale in like manner ; and all the pro- visions of this act shall apply as in other cases named above. (Section 19, id.) § 31. It shall not be lawful, under the provisions of this act, to sell intoxicating liquors to any person guilty of habitual drunkenness, nor to any person against whom the EXCISE AND HOTEL LAWS. 37 seller may have been notified by parent, guardian, husband or wife, from selling intoxicating liquors, and every party so selling or retailing intoxicating liquors, shall, on proof thereof, before any court of competent jurisdiction, be de- prived of his license to sell, and shall not be allowed a renewal of said license, and in addition, on conviction, shall be punished by a line of not less than twenty dollars, nor more than fifty dollars, for each and every violation of the provisions herein set forth. If any inn, tavern or hotel keeper, or any other person or persons whatsoever, know- ingly (ontside of any poor-house), shall sell or give to any pauper or inmate of any poor-house or alms-house, strong or spirituous liquors, or wines, such person or persons so offending shall be lined twenty-live dollars, and be guilty of a misdemeanor, and on conviction shall be imprisoned not more than sixty days. (Section 20, id.) § 32. No inn, tavern or hotel keeper, or other person, shall .sell or give away intoxicating liquors, or wines, on Sunday or upon any day on which a general or special election or town meeting shall be held, and within one-quarter of a mile from the place where such general or special election or town meeting shall be held, in any of the villages, cities or towns of this State, to any person whatever, as a beverage. In case the election or town meetings shall not be general throughout the State, the provisions of this section in such case shall only apply to the city, county, village or town in which such election or town meeting shall be held. Who- ever shall offend against the provisions of this section shall be guilty of a misdemeanor, and shall be punished for each offense by a fine not less than thirty dollars, nor more than $200, or by imprisonment not less than live days nor more than fifty days, or both such rine and imprisonment, at the discretion of the court. (^Section 21, chapter u*2S, 1857, as amended by section 5, chapter 549 of the Laws of 1873. | This section, before amendment, only applied to persons licensed, and upon conviction could be imprisoned not more than twenty days. There was no discretion in the court to line or imprison as in the section as amended. § 33. The penalties imposed by this act. except the penal- ties provided for by sections 15 and 19, shall be sued for and 38 EXCISE AND HOTEL LAWS. recovered by and in the name of the overseers of the poor of the town or city in which the alleged penalty is incurred, except in snch towns or cities as have no overseers of the poor, in which case said penalties shall be sned for and re- covered by and in the name of the board of commissioners of excise of the town or city aforesaid, and paid over to the treasury of the county for the support of the poor of the town or city in which such penalty was incurred, except that in counties where there is no distinction between town and county poor, then for the poor of such county, within thirty days after receipt of the same by such commissioners, overseers or their attorneys. (Section 22, chapter 628, 1857, as amended by chapter 109 of the Laws of 1878.) *19. This section was also amended by section 1, chapter 820, Laws of 1873. As original ly passed, the penalties, except under sections 8, 15 and 19, were to be sued for and recov- ered in the name of the board of commissioners of excise, and paid over to the treasurer of the county for the poor of the county. This was when the commissioners of excise were county officers and appointed as prescribed in the first section of the act of 1857. Section 8 then gave the penalty to the overseer of the poor for the use of the poor, so that in 1873, when section 22 was amended, it gave all penalties to the overseer of the poor, except under sections 15 and 19, which x>rescribed special methods of recovery and disposition of proceeds. (See sec- tions 26 and 30, ante.) The act, as amended in 1878, makes a provision for such towns as have no overseer of the poor, in such case making it the duty of the commissioners of excise to prosecute, and also making provision for county poor, in counties where there is no distinction between town and county poor. By the above section, as amended, all penalties incurred are to be sued for and recovered by and in the name of the overseer of the poor, except under sections 15 and 19. The reader is requested to observe, by the decisions here- inafter cited, that the forfeiture of a hotel, store or saloon keepers bond, is not regarded as a penalty, and, therefore, EXCISE AND HOTEL LAWS. 39 the action upon such bond is not to be brought by the overseer. (See post, chapter 3, section 5.) § 34. Every bond taken pursuant to the provisions of this act shall, within ten days after the execution of the same, be filed in the office of the clerk of the town or village in which the license shall be granted, and in cities in the city clerk's office. (Sections 23, chapter 626, 1857.) * 20. This section has not been changed. § 35. Whenever a breach of the condition of such bond, given upon the granting of any licanse, shall happen, it shall be the duty of the commissioners of excise, the supervisor of the town, mayor of the city, or trustees of the village in which the person who shall incur the penalty shall reside, to prose- cute the same and recover the penalty therefor. (Section 24, id.) *2l. § 36. Whenever any conviction or judgment shall be ob- tained against any person, licensed to sell strong or spiritu- ous liquors or wines, for any violation of the provisions of this act, either in a suit for a penalty, or in a suit upon a bond given by such person, it shall be the duty of the jus- tice or court before whom the same shall be had to transmit to the next court of sessions of the county a statement of such conviction or judgment, and the offense for which it was obtained. (Section 25, id.) *22. § 37. The said court shall cause the person or persons against whom such conviction or judgment was obtained, to be notified to appear on such day as the court shall appoint, to show cause why any such license that may have been granted to him or them should not be revoked. At the day appointed, and on such other days as the court shall ap- point, it shall proceed to inquire into the circumstances, and shall revoke the license granted to the person or per- sons violating the provisions of this act. (Section 26, id.) *23. § 38. The person whose license shall be revoked shall be incapable of receiving any such license to sell strong or 40 EXCISE AND HOTEL LAWS. spirituous liquors or wines for the space of three years from the time of such revocation. (Section 27, id.) *24. § 39. Any person who shall sell any strong or spirituous liquors or wines to any of the individuals to whom it is de- clared by this act to be unlawful to make such sale, shall be liable for all damages which may be sustained in conse- quence of such sale ; and the parties so offending may be sued in any of the courts of this State by any individual sustaining such injuries, or by the overseers of poor of the town where the injured party may reside, and the sum re- covered shall be for the benefit of the party injured. (Sec- tion 28, id ; see sections 69 and 70, post, Civil Damage Act.) § 40. It shall be the duty of courts to instruct grand jurors to inquire into all offenses against the provisions of this act, and to present all offenders under this act, and also all persons who may be charged with adulterating imported or other intoxicating liquors with poisonous or deleterious drugs or mixtures, or selling the same, or with knowingly importing or selling intoxicating liquors or wines adulter- ated with poisonous or deleterious drugs or mixtures, which offenses are hereby declared to be misdemeanors, to be pun- ished by imprisonment in the penitentiary, work-house or jail, for a period of three months, and by a fine of $100. (Section 29, id.) The $100 fine and three months imprisonment prescribed in this section, applies only to persons adulterating or im- porting adulterated liquors, and not to all offenses specified in the act. § 41. In case the parties or persons whose duty it is to prosecute for any penalty imposed for any violation of the provisions of this act shall, for the period of ten days after complaint to them that any person has incurred such pen- alty, accompanied with reasonable proof of the same, neg- lect or refuse to prosecute for such penalty, any other person may prosecute therefor, in the name of the overseers of the poor of the town in which such alleged penalty was incurred, and in the manner provided by section twenty- two of this act, as the same is amended by section one of EXCISE AND HOTEL LAWS. 41 this chapter. (Section 30, chapter 628, 1857, as amended by section 2, chapter 820, 1873.) We assume that the penalties under sections 15 and 19 are not meant to be prosecuted "by any other person," although the strict reading of the act would so dictate, those penalties being given to private persons. § 42. All incorporated companies and persons in this State engaged in conveying passengers, including especially all railroad, steamboat and ferry companies, and all kinds of corporations conveying for hire, persons or property, shall be and hereby are r< quired to refuse employment to all per- sons who, on good and sufficient proof, shall be shown to indulge in the intemperate use of intoxicating drinks, and any such company which shall retain in its employ any per- son or persons who shall, on competent proof, be shown to be intoxicated at any period whilst in the active service of said company or person, either as engineer, conductor, fire- man switch -tender, commander, pilot, mate or foreman, or be in any way connected with the moving power or manage- ment, or whose duty, if neglected, would diminish the se- curity and safety of life, limb or property entrusted thereto, said company or corporation shall be liable to pay a sum of not less than fifty dollars nor more than §100 to the county treasurer in the county where the offense may be committed and proved, before any court of competent jurisdiction. (Section 31, chapter 628* 1857.) § 43. In any judgment rendered or recovered on any bond to be given under this act, or for any penalty incurred under this act, the person or persons against whom such judgment shall be rendered shall not be entitled, under any execution issued on such judgment, to the liberties of the jail. (Sec- tion 32, id ; see 2?osl, chapter 3, section 11.) § 44. Title nine of chapter twenty of the first part of the Revised Statutes, and the act entitled "An act for the pre- vention of intemperance, pauperism and crime," passed April 9, 1855, and all other acts inconsistent with the pro- visions of this act, are hereby repealed. (Section 33, id.) This concludes the excise law of 1857, every section hav- ing been given in full as originally passed or amended by subsequent statutes, except the first section, which related 42 KX( [SE AND HOTEL LAWS. solely to county commissioners, their manner of appoint- ment, etc.. they having been entirely superceded by com- missioners in towns, villages and cities. ( Section 45. I § 45. All the provisions of this act, as amended, shall be held to apply to the sale of ale or beer, except so much thereof as forbids the granting of license to any person, except to such persons as propose to keep an inn, tavern or hotel : and the commissioners of excise may, in their discretion, grant license for the sale of ale or beer for a sum not less than ten dollars to other than those who propose to keep an inn. tavern or hotel : and the provisions of this act shall ex- tend to all portions of the State, except the Metropolitan police district. * Section 4. chapter 856, 1869. I § 46. The act entitled "An act to regulate the sale of in- toxicating liquors within the Metropolitan police district of the State of Xew York,** passed April 14. I860, is hereby repealed : and the provisions of the act passed April 16, 1857, except where the same are inconsistent or in conflict with the provisions of this act. shall be taken and construed as a part of this act. and be and remain in full force and effect throughout the whole of this State. (Section 6, chap- 175, 1870.) It will be observed by reference to the above section, that it extends the law of 1857 as amended or adopted by said section to the whole State, and makes it. so far as unre- pealed, or not inconsistent, a part of the act of 1870. The local statutes of different cities and counties, so far as we shall give them herein, we suppose to be still in force, not- withstanding the language used in this section. 47. Licenses granted as in this act provided, shall not authorize any person or persons to expose for sale, or sell, give away or dispose of any strong or spirituous liquors, wines, ale or beer, on any day between the hours of one and live o'clock in the morning. And all places licensed, as aforesaid, shall be closed and kept closed between the hours aforesaid, and at all other times when such selling is not authorized by law ; and it shall be the duty of every sheriff, constable, policeman and officer of police to enforce the observance of the foregoing provisions. Nothing herein contained shall be construed to prevent hotels from receiv- EXCISE AND HOTEL LAWS. 43 ing and entertaining travelers at any time, subject to the re- strictions contained in this act and the act hereby amended. (Section 5, chapter 175, 1870, as amended by section 3, chap- ter 549, 1873.) § 48. In no town or village shall the commissioners of excise created by this act, appoint a clerk of the board of excise. The pay of commissioners of excise in towns or villages shall be three dollars per diem. The moneys arising from licenses in any town or village shall be depos- ited with the county treasurer, within thirty days after re- ceiving the same, to be expended under the direction of the board of supervisors at their next annual meeting, for the support of the poor of such town. Moneys arising from licenses in cities shall be paid into the treasuries of such cities respectively. The book of minutes kept by the com- missioners of excise in any town or village, except when in use by such commissioners, shall be deposited in the clerk's office of such town or village. The expenses of procuring necessary books for minutes, and necessary blanks, in any town or village, when actually incurred, shall be audited and paid in like manner as other town or village charges. (Section 7, chapter 175, 1870.) * 22, 24. A portion of section 5 of the act of 1857 (ante, § 16), is in direct opposition to the first part of this section, and therefore "inconsistent" therewith and repealed. § 49. Any conviction for the violation of any provision of this act, or of the acts hereby amended, by any person or persons licensed, or at any place licensed as herein provided, shall forfeit and annul such license. The board of excise of any city, town or village, may, at any time, and upon the comx>laint of any resident of said city, town or village, shall, summon before them any person or persons licensed as aforesaid ; and if they shall become satisfied that any such person or persons has or have violated any of the pro- visions of this act, or of the acts hereby amended, they shall revoke, cancel and annul the license of such person or persons, which they are hereby empowered to do, and where necessary to enter upon the premises and take pos- session of and cancel such license. Upon an inquiry the 44 EXCISE AND HOTEL LAWS. said board, or the part}' complained of. may summon, and the said board may compel, the attendance of witnesses before them, and examine them under oath. (Section 8, chapter 175, 1870, as amended by section 4, chapter 549, 1873.) Sections, of the act of 1870 was not of general applica- tion, but was limited as to time and place, and is no longer operative, being amended out of existence by the above amendatory section. It may be well to repeat that villages as such have now no board of excise, unless by special statute. The words "boards of excise of villages'' had in contemplation the law of 1870. which created village boards; but the act of 1874 (see ante, sections 1 and 2) if not in terms, in fact, leg- islated village boards out of existence. In reading the law of 1870 and 1873, above given, the word ••villages" can be left out, when the sections will be understood in their pres- ent meaning. § 50. Nothing herein contained shall in any manner apply to any city or town where the majority of voters have voted for, or shall hereafter vote for, local prohibition in accord- ance with any law providing for such voting, until such city or town shall reverse by vote such local prohibition. (Sec- tion 6, chapter 549, 1873.) § 51. If any person employed, or who shall be employed, upon the railroad of any such corporation as engineer, conductor, baggagemaster, brakeman, switchman, fireman, bridge-tender, flagman, signalman, or having charge of the regulating or running of trains upon said railroad in any manner whatsoever, be intoxicated while engaged in the dis- charge of such duties, he shall, upon conviction thereof, be deemed guilty of a misdemeanor, and shall be punishable for each offense by a tine not exceeding 6100, or by imprison- ment in a county jail for a term not exceeding six months, in the discretion of the court having cognizance of the offense. And if any person so employed, as aforesaid, by any such corporation shall, by reason of such intoxication, do any act or neglect any duty, which act or neglect shall cause the death or injury to any person or persons, he shall, upon conviction thereof, be punishable by imprisonment in EXCISE AND HOTEL LAWS. 45 the county jail for a term of not less than six months, or in the State prison for a term not exceeding ft ve years, in the discretion of the court having cognizance of the offense. (Section 41 of an act entitled u An act to authorize the for- mation of railroad companies, and to regulate the same," passed April 2, 1850, as amended by section 4, chapter 560, 1871.) A person who, being employed upon any railway as engineer, conductor, baggagem aster, brakeman, switch- tender, fireman, bridge-tender, flagman, signalman, or hav- ing charge of stations, starting, regulating or running trains upon a railway, or being employed as captain, engineer or other officer of a vessel propelled by steam, is intoxicated while engaged in the discharge of any such duties, is guilty of a misdemeanor. (Section 420, Penal Code.) By subdivision 9, section 56 of the Code of Criminal Pro- cedure, the "courts of special sessions, except in the city and county of New York and the city of Albany, have, in the first instance, exclusive jurisdiction to hear and deter- mine charges of misdemeanor committed within their re- spective counties.'' as follows: "Intoxication of a person engaged in running any locomotive engine upon any rail- road, or while acting as conductor of a car, or train of cars, on any such railroad." And by subdivision 12, "offenses against the laws relating to excise, and the regulation of taverns, inns and hotels." And by subdivision 27, "un- lawfully selling or giving to any Indian spirituous liquors or intoxicating drinks." And by subdivision 32, "selling liquors in a court house or jail contrary to law." § 52. Licenses to keep taverns, pursuant to the laws of this State, may be granted by the commissioners of excise, in the several cities and towns of this State, or by any board or officers exercising the power of such commissioners, with- out including a license to sell strong or spirituous liquors, ale, wines, beer or alcoholic drink. And in all such cases the license shall express such restrictions on its face, and a fee of live dollars may be charged for granting such license, and no more ; but no such license shall be given until the bond required to be given by tavern keepers is executed and de- 46 EXCISE AND HOTEL LAWS. livered to said commissioners. (Chapter 419 of the Laws of 1877.) (See post, chapter 5, section 3.) § 53. It shall be lawful for the town board of any town, whose yearly receipts from the excise board are in excess of the amount required to maintain the poor of said town, to expend the balance of the same on other ordinary town expenses. (Chapter 143 of the Laws of 1872.) By the same chapter, all acts or parts of acts inconsistent with the above section were repealed. § f>4. Strong, spirituous or fermented liquor, or wine, ' shall not, on any pretence whatever, be sold within a build- ing established as a court house for holding courts of record, while such a court is sitting therein. (Section 32, Code of Civil Procedure.) A person violating the last section is guilty of a misde- meanor. (Section 33, id.) § 55. In cities and incorporated villages no building, or part of a building, shall be designated as a registry or x>oll- ing place in which, or any part of which, spirituous or in- toxicating liquors are sold. (Section 16, chapter 570, Laws of 1872.) No lager beer, ale, wine or spirituous liquors shall be allowed on election day in any room used for election pur- poses. (Section 17, chapter 56, Laws of 1880.) § 56. It shall be unlawful to introduce into any poor- house, juvenile reformatory, protectory, house of refuge, jail, penitentiary or prison, or to bring upon the premises thereof, any wine, alcoholic, malt or intoxicating liquors, except upon the written requisition of the medical officer of such institution, or for any trustee, manager, officer, agent, employee or other person connected with any such institution, or the inmates thereof, to use, to offer to others, or to allow to be used within any such institution, or upon the premises thereof, any wine, alcoholic, malt or intoxi- cating liquors, except by the direction and prescription of the medical officer of such institution, who shall, in every case of such prescription, make a record of the name of the person and the cause for which such prescription is given, in a book kept publicly for such purpose, which EXCISE AND HOTEL LAWS. 47 record shall be verified by the affidavit of such medical offi- cer, at least once in every six months. (Section 1, chapter 429, Laws of 1880.) § 57. Any person violating this act, upon conviction thereof shall be deemed guilty of a misdemeanor. (Sec- tion 2, id.) § 58. No minor under the age of fourteen years shall be admitted at any time to, or permitted to remain in, any saloon or place of entertainment where any spiritous liquors or wines or intoxicating or malt liquors are sold, exchanged or given away, or at places of amusement known as dance houses and concert saloons, unless accompanied by parent or guardian. Any proprietor, keeper or manager of any such place, who shall admit such minor to, or permit him or her to remain in, any such place, unless accompanied by parent or guardian, shall be guiity of a misdemeanor. (Section 1, chapter 428, Laws of 18770 § 59. Any person who shall suffer or permit any child under the age of sixteen years to play any game of skill or chance in any place wherein, or adjacent to which, any beer, ale, wine or liquor is sold, shall be guilty of a misdemeanor. And any such child found engaged in playing any such game in any such place may be arrested and detained as a witness against the person so offending. (Section 2, chap- ter 496, Laws of 1881.) § 60. A person who admits to, or allows to remain in any dance house, concert saloon, theater or other place of enter- tainment, owned, kept or managed by him, where wines or spirituous or malt liquors are sold or given away, any child, actually or apparently under the age of fourteen years, un- less accompanied by a parent or guardian, is guilty of a misdemeanor. (Section 290, Penal Code.) § 61. A male child actually or apjmrently under the age of sixteen years, or a female child actually or apparently under the age of fourteen years, who is found frequenting the company of reputed thieves or prostitutes, or a house of prostitution or assignation, or living in such a house either with or without its parent or guardian, or frequenting con- cert saloons, dance houses, theaters or other places of enter- tainment, or places where wines, malt or spirituous liquors 48 EXCISE AND HOTEL LAWS. are sold, without being in charge of its parent or guardian, must be arrested and brought before a proper court or magistrate as a vagrant, disorderly or destitute child. Such court or magistrate may commit the child to any charitable, reformatory or other institution authorized by law to re- ceive and take charge of minors, or may make any disposi- tion of the child such as now is, or hereafter may be, authorized in the cases of vagrants, truants, paupers or dis- orderly persons. (Subdivisions 4 and 5, section 291. Penal Code.) § 62. The following persons are vagrants : 1st. A person who, not having visible means to maintain himself, lives without employment. 2d. A person who, being an habitual drunkard, abandons, neglects or refuses to aid in the support of his family. 3d. A person who has contracted an infectious or other disease, in the practice of drunkenness or debauchery, re- quiring charitable aid to restore him to health. 4th. A person w r andering abroad and lodging in taverns, groceries, ale-houses, watch or station-houses, out-houses, market places, sheds, stables, barns or uninhabited build- ings, or in the open air, and not giving a good account of himself. (Subdivisions 1, 2, 3 and 6, section 887, Code of Criminal Procedure. ) There are other persons named as vagrants in the above section, not necessary to enumerate in this w r ork. A peace officer must, when required by any person, take a vagrant before a justice of the peace or police justice of the same city, village or town, or before the mayor, re- corder or city judge, or judge of the general sessions of the same city, for the purpose of examination. (Section 890, Code of Criminal Procedure.) The further proceedings, after arrest of a vagrant, are pointed out in title sixth of the Code of Criminal Procedure. § 63. Keepers of bawdy-houses, or houses for the resort of prostitutes, drunkards, tipplers, gamesters, habitual crimi- nals, are disorderly persons. (Part of section 899, Code of Criminal Procedure.) Upon complaint, on oath, to a justice of the peace, or police justice of a city, village or town, or to the mayor, EXCISE AND HOTEL LAWS. 49 recorder, city judge or judge of the general sessions of a city, against a person as being disorderly, the magistrate must issue a warrant, signed by him, with his name of office, requiring a peace officer to arrest the defendant, and bring him before the magistrate for examination. (Section 900, Code of Criminal Procedure.) The further proceedings, after arrest of a disorderly per- son, and the punishment, are pointed out in title 7 of the Code of Criminal Procedure. § 64. No act committed by a person while in a state of voluntary intoxication, shall be deemed less criminal by reason of his having been in such condition. But whenever the actual existence of any particular purpose, motive or intent is a necessary element to constitute a particular spe- cies or degree of crime, the jury may take into considera- tion the fact that the accused was intoxicated at the time, in determining the purpose, motive or intent with which he committed the act. (Section 22, Penal Code.) § 65. A physician or surgeon, or person practicing as such, who, being in a state of intoxication, without a design to effect death, administers a poisonous drug or medicine, or does any other act as a physician or surgeon, to another person, wTiich produces the death of the latter, is guilty of manslaughter in the second degree. (Section 200, Penal Code.) § 66. A physician or surgeon, or person practicing as such, who, being in a state of intoxication, administers any poison, drug or medicine, or does any other act as a physi-i cian or surgeon, to another person, by which the life of the latter is endangered, or his health seriously affected, is guilty of a misdemeanor. (Section 357, Penal Code.) See last section. § 67. A person who, either — 1st. With intent that the same may be sold as unadulter- ated or undiluted, adulterates or dilutes wine, milk, distilled spirits, or malt liquor, or any drug, medicine, food or drink, for man or beast ; or, 2d. Knowing that the same has been adulterated or diluted, offers for sale or sells the same as unadulterated or undiluted, or without disclosing or informing the purchaser that the 4 50 EXCISE AND HOTEL LAWS. same lias been adulterated or diluted, in a case where special provision has not been otherwise made by statute for the punishment of the offense ; Is guilty of a misdemeanor. (Section 407, Penal Code.) § 68. A person, who, with intent that the same may 1><- used as food, drink or medicine, sells, or offers or exposes for sale, any article whatever, which, to his knowledge, is tainted or spoiled, or for any cause unfit to be used as such food, drink or medicine, is guilty of a misdemeanor. (Sec- tion 408, Penal Code.) Civil Damage Act. § 69. Every husband, wife, child, parent, guardian, em- ployer or other person who shall be injured in person or property, or means of support, by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, shall have a right of action in his or her name, against any person or persons who shall, by selling or giving away intoxicating liquors, caused the intoxication, in whole or in part, of such person or persons, and any person or persons owning or renting or permitting the occupation of any building or premises, and having knowledge that in- toxicating liquors are to be sold therein, shall be liable, severally or jointly with the person or persons selling or giving intoxicating liquors aforesaid, for all damages sus- tained, and for exemplary damages ; and all damages re- covered by a minor under this act shall be paid either to such minor or to his or her parent, guardian or next friend, as the court shall direct ; and the unlawful sale or giving away of intoxicating liquors shall work a forfeiture of all rights of the lessee or tenant under any lease or contract of rent upon the premises. (Section 1, chapter 646, 1873 ; see section 39, ante.) % 70. In any action arising for violations of the provisions of this act, any justice of the peace in the county where the offense is committed, shall have jurisdiction to try and de- termine the same, providing the amount of damages claimed do not exceed $200 ; in which case, and where the damages claimed do not exceed $500, the justice of the peace before whom the action is commenced shall associate with himself EXdSE AND HOTEL LAWS 51 any other two justices of the peace in the same county, who shall have jurisdiction to try and determine the same. (Sec- tion 2, id. The last two sections constitute what is known as the civil damage law. There have been numerous decisions made upon the same, some of the most important of which are cited and commented upon in a later part of this work. (See chapter 4, section 1.) £ 71. For wrongs done to the property, rights or interests of another, for which an action might be maintained against the wrong-doer, such action may be brought by the person injured, or, after his death, by his executors or administra- tors, against such wrong-doer, and after his death against his executors or administrators, in the same manner and with the like effect, in all respects, as actions founded upon contracts. (Third Ttevised Statutes [6th ed.], 732, section 1.) Previous to the passage of the civil damage act, an action might be maintained under the last section by an executor or administrator, against the person or persons who sold liquor to the testator or intestate, known by the seller to be an habitual drunkard, and losing his life while in a state of intoxication. (See post, chapter 4, section J . i And it is not probable that the right of action under this section is taken away by the civil damage act, for that act created a new cause of action, giving the right to recover to certain persons therein specified, when ''injured in person or property or means of .support,' ' but we assume that a recovery under the last- named act, would bar a recovery under the last section. There are cases where there would be no person to prose- cute under the civil damage act, or the injury such that the action could not be maintained, while an action could be maintained by the representatives of a deceased person, under the last section. Special Statutes. Many of the cities and villages in this State have special -statutes relating to the excise laws, specifying the manner of appointment or organization of the board of excise, or the disposition of excise moneys, penalties, etc. These stat- utes, when in conflict with parts of the general excise laws, 52 EXCISE AND HOTEL LAWS govern for the localities specified. Such provisions of the general statutes, however, as are not in conflict with such special statutes, are in force in the localities named. The most important of the special statutes will now be given for the benefit of the cities and villages interested, and that all may easily know, without research, the law as applicable to all parts of the State, except local legislation in any particular city or village, permissable under their charters. § 72. "City and town of Newburgh — 'An act to provide for the better support of the poor in the city and town of Newburgh, in the county of Orange ;' passed April 4, 1871. "Sec. 1. The annual report required by the fifth section of the act entitled 'An act for the better support of the poor in the town of Newburgh, in the county of Orange,' passed March 23, 1853, and the several acts amendatory thereof, to be made by the commissioners of the alms-house of the city and town of Newburgh, shall, after the year 1871, be made by said commissioners on the first day of March in each and every year, and shall be signed, filed and published as required by said fifth section of said act. "Sec. 2. All penalties which may hereafter be incurred for violation, committed either in the city of Newburgh or the town of Newburgh, in the county of Orange, of any of the laws of this State relating to the sale of intoxicating liquors, may be sued for and recovered by the commissioners of the alms-house of the city and town of Newburgh by civil ac- tion, in their corporate name, before any justice of the peace of said city or town, or in the county court of Orange county, or in the Supreme Court ; and said j)enalties, when collected, shall be applied to the support of the poor of said city and town. " Sec. 3. All moneys which shall be collected and received by the commissioners of excise in the city of Newburgh, in the county of Orange, or by any other officers of said city or town arising from licenses granted in said city and town under the laws of this State regulating the sale of intoxi- cating liquors, or for penalties incurred for violations of such laws committed in said city or town, shall be paid over by the officers receiving the same within twenty days after they EXCISE AND HOTEL LAWS. 53 shall receive the same to the commissioners of the alms- house of the city and town of Xewburgh, for the support of the poor of said city and town. "Sec. 4. All lines imposed or hereafter to be imposed by the recorder of the city of Xewburgh, or by any justice of the peace of the town of Newbnrgh, or by any court of crimi- nal jurisdiction in the county of Orange, for drunkenness or violation of any of the laws of this State relating to in- toxicating liquors or the sale thereof, committed in the city or town of Xewburgh, in the enmity of Orange, shall be paid over by the officer or officers receiving such lines to the commissioners of the alms-house of the city and town of Xewburgh. for the support of the poor of said city and town. (As amended by chapter 739, 1S71. | 44 Sec. 5. All acts or parts of acts relating to the support of the poor in the city and town of Xewburgh. in the county of Orange, and to the sale of intoxicating liquors, so far as the latter are applicable to said city and town, inconsistent with the provisions of this act. are hereby repealed." ■• Chap- ter 276 of the Law- of 1871. 1 73. "Orange county. The commissioners of excise of the several towns and villages in Orange county ^except the city and town of Xewburgh i shall pay over to the super- visor of the town, within thirty days after the receipt thereof, all moneys received by them as excise commission- ers. Such moneys shall be paid by the supervisor to the overseers of the poor of the town in such sums and at such times as may be needed for the temporary relief of the poor of the town, as may be directed by the town board.* 1 (Chapter 533 of the Laws of 1S73. £ 74. "City of Kingston. — The common conncO shall ap- point three commissioners of excise who shall possess all the powers and perform the duties of boards of commis- sioners of excise, and be subject to the excise laws of this State, except as modified by this act. They shall meet but one day in each month. The compensation of each com- missioner of excise shall be three dollars for each day of actual service. Their expenses for necessary books and blanks shall be audited and paid as other city charges. All license moneys and all penalties for violations of excise 54 EXCISE AND HOTEL LAWS. laws or ordinances shall be paid over to the city treasurer for the benefit of the poor of the city, and may be sued for and recovered in the corporate name of the city. (Section 58, title 5, chapter 150, 1872.) " There shall be a corporation, in the city of Kingston by the name of the commissioners of the alms-house of the city of Kingston, which shall possess the usual powers of a corporation for public purposes, and shall be composed of the several alms commissioners of said city. (Part of sec- tion 59, title 6, id.) "The said commissioners shall also have power to receive from the commissioners of emigration all moneys they may become entitled to receive for and on account of foreign paupers relieved by them. They shall also be entitled to receive the excise money received in said city, with all lines, forfeitures and penalties which may accrue to them as such commissioners, together with all money raised in said city for the support of the poor, which said several sums of money shall be applied by the said commissioners to the support and relief of the poor in said city according to the provisions of this title. All the moneys aforesaid shall be first paid to the treasurer of said city, and may be drawn therefrom by the said commissioners, from time to time, as the same may be needed, upon warrants directed to said treasurer, and signed by the president of said commission- ers, and countersigned by their secretary, and numbered consecutively as issued. (Subdivision 5. section 60, id.) "The said commissioners shall also have power, and it shall be their duty, to sue in their corporate name for all violations of the excise laws committed in said city in any court having jurisdiction of such suits. All other suits and proceedings which may, by laAv, be prosecuted and main- tained by the overseers of the poor of a town to enforce civil remedies, shall and may hereafter be prosecuted and maintained, and remedies enforced in the name of the com- missioners of the alms-house of the city of Kingston/' (Subdivision 6, section 60, id.) § 75. "City of Poughkeepsie — 'An act to provide for the better support of the poor in the city of Poughkeepsie, in the county of Dutchess;' passed April 23, 1871. EXCISE AND HOTEL LAWS. 55 "Sec. 1. All penalties, which may hereafter be incurred for violation, committed in the city of Poughkeepste, in the county of Dutchess, of any of the laws of this State, relating to the sale of intoxicating liquors, may be sued for and re- covered by the commissioners of the alms-house of the city of Poughkeepsie by civil action, in their corporate name, before any justice of the peace of said city, or in the county court of Dutchess county, or in the Supreme Court, and said penalties, when collected, shall be applied to the support of the poor of said city. "Sec. 2. All moneys which shall be collected and received by the commissioners of excise in the city of Poughkeepsie, in the county of Dutchess, or by any other officers of said city, arising from licenses granted in said city under the laws of this State, regulating the sale of intoxicating liquors, or for penalties incurred for violations of such laws, com- mitted in said city, shall be paid over by the officers receiv- ing the same, within twenty days after they shall receive the same, to the commissioners of the alms-house of the city of Poughkeepsie, for the support of the poor of said city. "Sec. 3. All lines imposed or hereafter to be imposed by the recorder of the city of Poughkeepsie, or by any justice of the peace of the city of Poughkeepsie, or by any court of criminal jurisdiction in the county of Dutchess, for drunkenness, or for violation of any of the laws of this State relating to intoxicating liquors, or the sale thereof, shall be paid over by the officer or officers receiving such tines, to the commissioners of the alms house of the city of Poughkeepsie for the support of the poor of said city. "Sec. 4. All acts or parts of acts relating to the support of the poor in the city of Poughkeepsie, in the county of Dutchess, and to the sale of intoxicating liquors, so far as the latter are applicable to said city, inconsistent with the provisions of this act, are hereby repealed." (The first four sections of chapter 736, 1871.) The above act was afterward re-enacted by an act entitled *"An act to amend the charter of the city of Poughkeepsie, and to consolidate with it other acts relating to said city ;" passed May 20, 1874: being chapter 497 of the Laws of 1874. 56 EXCISE AND HOTEL LAWS. The first three sections above being respectively sections 4, 5 and 6 of title 11 of said act. except that the charter added the words in italics in section 3, and again enacted in an amended charter of said city, sections :>m*2. ggg alK | 904 of chapter 523 of the Laws of lrS3. ^ 76. "City of Yonkers.— Portions of chapter 184. 1881. en- titled 'An act to revise the charter <>f the city of Yonkers.' "The mayor shall nominate and. with the consent of the common council, appoint the commissioners of excise for the city, who shall hold their office and perform all the du- ties enjoined upon commissioners of excise as provided by law. (Section 18. title 11.) "The common council shall have power to prohibit the adulteration of wines, liquors, ales, drugs, milk, food and provisions sold or exposed for sale, and the selling or giving away to be drank of any intoxicating liquors to any person under eighteen years of age. (Subdivision *2*2. section 6, title 6.) "All laws now in force not inconsistent with the provisions of this act, applicable to overseers of the poor in towns, shall apply to the commissioner of charities, and such commis- sioner of charities shall have and possess all powers which overseers of the poor of towns now have, or which may here- after be conferred upon them. ( Section 1, title 10. | "The mayor, any alderman or any police officer shall have power, at all times, to arrest or cause to be arrested, with or without process, any person who shall sell or give away strong or spirituous liquors, wines, ale or beer, within the limits of the city, contrary to law ; habitual drunkards ; persons found intoxicated in the streets, or engaged in quar- reling or righting, or immoderate riding or driving, or doing anything calculated to endanger persons or property in any of the streets or public places : persons refusing to assist in the extinguishment of fires, or to aid in protecting property thereat : vagrants, mendicants, beggars, common prostitutes, gamblers, persons gathered upon the public streets who re- fuse to disperse when commanded by any such officer so to do, in addition to those enumerated persons in the first section of title 5. chapter 20 of the first part of the Eevised Statutes, all of whom shall be deemed disorderly persons. The said EXCISE AND HOTEL LAWS. 57 officers shall have power, with or without process, while in pursuit of such disorderly persons, to enter, or cause to be entered, any building or place, and upon the arrest of any such person to take him before the city judge, to be dealt with according to law. In case the city judge for the time being cannot be found, the officer arresting any such offender may detain him in custody, or commit him to the county jail, or any other convenient place of safe keeping, until such city judge can be found, not to exceed twenty-four hours. Any such officer shall have power to command assistance whenever he shall deem it necessary." (Section 11, title 11.) By section 32 of title 3, all penalties, fines, claim or other money received by the commissioners of excise must be paid into the city treasury on or before the last day of the month in which received. § 77. "City of Lockport — 'An act to authorize the com- missioners of excise for the city of Lockport to be elected at the same time and in the same manner as other city offi- cers are elected, instead of being appointed by the mayor passed May 13, 1881. "Sec. 1. Heieafter the commissioners of excise for the city of Lockport, instead of being appointed by the mayor, shall be elected at the same time and in the same manner as other city officers are elected. At the annual election to be held in and for said city of Lockport, on the second Tuesday of April, in the year 1882, there shall be elected three com- missioners of excise, who, while acting as such commission- ers, shall not hold any other city or ward office, and who shall compose the board of excise of said city, and discharge the duties imposed upon the present board of excise of said city by chapter 175 of the session laws for the year 1870, and the laws amendatory thereof and supplementary thereto ; and shall be entitled to receive compensation at the rate of three dollars per day while in session as a board of excise, which shall be a city charge. The commissioners first elected under this act shall be classified by lot, under the superin- tendence of the mayor, or in case of his absence, of the city clerk of said city of Lockport, w ho shall attend at the office of the city clerk of said city for such purpose, within ten 58 EXCISE AND HOTEL LAWS. days after such election, and the persons drawing for one, two and three years shall serve for such term respectively ; and annually thereafter one commissioner of excise shall be elected for a term of three years. The present commission- ers of excise in said city of Lockport, and all who may be hereafter appointed prior to the first election under this act, shall only hold their office until commissioners of excise shall be elected under this act and shall have duly qualified, when their term of office shall end. Vacancies occurring in said board, so to be elected, from any cause, other than ex- piration of term of office, shall be filled by appointment by the mayor of the city of Lockport until the next annual election for city officers, when such vacancies shall be filled by election. "Sec. 2. The said commissioners shall be voted for upon a separate ballot, which shall be deposited in a separate box, marked 'excise;' and before entering upon the duties of their offices shall each, severally, take and subscribe the con- stitutional oath of office, and file the snme with the city clerk of said city of Lockport, and shall execute a bond with sureties to the treasurer of the said city, to be approved by him, in the penal sum of $3,000, conditioned for paying over to him or his immediate successor in office, within thirty days after the receipt thereof, all moneys received by them as such excise commissioners. Said moneys shall be dis- posed of by the common council of said city in supporting the poor of said city. " Sec. 3. Nothing in this act shall affect the provisions of any special act in so far as the same provides for any special disposition of excise moneys or fines. "Sec. 4. All acts or parts of acts inconsistent with this act, so far as they relate to the city of Lockport and the com- missioners of excise thereof, are hereby repealed." (Chapter 269 of the Laws of 1881.) §78. "City of Rochester. — The common council shall have power to make, modify and repeal such ordinances, by-laws and regulations as it may deem desirable ; to forbid and prevent the vending or other disposition of liquors and intoxicating drinks to be drank in any canal boat, store or other place not duly licensed ; and to forbid the selling, or EXCISE AND HOTEL LAWS. 59 giving to be drank, any intoxicating liquors to any child or young person, without the consent of his or her parents or guardian. (Subdivision 3, section 40, chapter 14, 1880.) To restrain and punish drunkards, vagrants, mendicants, street beggars, and persons soliciting alms or subscriptions for any purpose whatever. (Subdivision 1 1, id.) "The commissioners of excise of the said city shall make a report in writing every month to the common council, signed by such commissioners and verified by their oath, and shall deliver such report so verified to the city clerk, before the last day of the month, which report shall contain a full, true and detailed statement of all moneys received by them and not before reported as hereby required, with the date and amount of each and every item of money received, and the name and place of business of each and every per- son licensed (not before reported as aforesaid), and the amount charged in each case. With every such report shall be the city treasurer's receipt, showing that the full amount of moneys so reported have been paid to him. A like veri- fied report shall be made and bear date on the Saturday next before the first Monday of May in each year, and shall be delivered to the city clerk with the treasurer s receipt as aforesaid within two days thereafter." (Section 59, id.) By section 236 of said chapter, the mayor and aldermen of the said city, by virtue of their offices, shall be overseers of the poor for the said city, and shall possess all the powers and authority of overseers of the poor in the several towns in this State, in relation to the care of habitual drunkards; the binding out and contracting for the service of disorderly persons ; and all such other powers as are conferred on overseers of the poor in the respective towns, and shall be subject to the same duties, obligations and liabilities. §79. "City of Troy.— Portions of chapter 328, 1880, en- titled 'An act to establish and maintain a police force in the city of Troy.' "Sec. 1. For the purpose of establishing and maintaining a body of police in the city of Troy, there shall be consti- tuted a board of police commissioners and a police force as herein provided. " Sec. 11. The said board of police commissioners shall be, 60 EXCISE AND HOTEL LAWS by virtue of their office, commissioners of excise and the board of commissioners of excise of the city of Troy, and shall possess the powers conferred and discharge the duties imposed upon boards of commissioners of excise in cities by law, and there shall be no other board of commissioners of excise in said city. All fees for licenses issued by said board of commissioners of excise of said city, provided for by law. shall be collected and received by said board of commissioners of excise of said city, and shall be paid to the chamberlain of said city of Troy monthly, for the use and benefit of the poor fund of said city, and toward pay- ing the expense of maintaining the poor of said city. The penalties imposed by law for the sale of strong or spirituous liquors, wines, ales or beer without having a license there- for, shall be sued for and recovered by and in the name of the board of commissioners of excise of the city of Troy, and on their recovery shall be paid to the officer at the time*, and for the use. benefit and purpose aforesaid. The said board shall have power to employ attorneys and coun- sel to prosecute actions for the recovery of said penalties, and to audit the fees, costs and disbursements of such attor- neys and counsel ; and the chamberlain of the city of Troy shall pay such audits out of the moneys received by him as aforesaid. 'J lie said board of commissioners of excise shall have power to appoint a clerk of said board at an annual salary not exceeding $1,000, payable monthly. On the first Monday of May, 1881, at twelve o'clock, noon, the term of office and the powers and duties of the person ap- pointed to said last-mentioned office, pursuant to the pro- visions of this section, prior to the fourth Monday of April, 1881, shall cease and terminate, and such person shall be discharged from duty. On the fourth Monday of April, 1881. or within five days thereafter, the said board of com- missioners of excise shall appoint a suitable person to the office of clerk of said board, whose term of office shall begin on the first Monday of May. 1881. at twelve o'clock noon. No compensation shall be paid to said })olice commissioners for acting as such commissioners of excise." (As amended by section '2, chapter 76, 1881.') § 80. City of Brooklyn. — By chapter 803 of the Laws EXCISE AND HOTEL LAWS. 61 of 1873, the police and excise boards of the city of Brook- lyn, were almost inexplicably interwoven. But by chapter 377, of the Laws of 1880, they were so far separated as to have two commissioners of excise, although the commis- sioner of police and excise is still the president of the board of excise. Section 1, title 11 of chapter 863, 1873. declares that there shall be a department of police and excise, to consist of a president and two commissioners of police and excise. By that act the mayor appointed them with the consent of the board of aldermen. By chapter 377, 1880, it became the duty of the mayor and comptroller to appoint "a proper person to be commis- sioner of police and excise, and also two proper persons to be commissioners of excise." They failing to agree, the mayor alone was to appoint. Each commissioner so ap- pointed was to take the oath of office and file his bond. Since January 1, 1882, the mayor alone has had the appoint- ing power ; the commissioners to hold their office two years at a salary of $2,000 per year each. As now constituted, the board of commissioners of ex- cise of said city consists of the commissioner of police and excise as president, and two commissioners of excise. By section 58, title 11, chapter 863, 1873, the said board possesses the same powers, and is subject to the same duties, as are imposed by the general State laws. The said board provides for the granting, decides who shall have, and the amount to be paid for license, and subject to the direction of the common council, provides regulations under which the persons licensed shall sell. The common council have the right to decide as to manner and form of license. It is the duty of the said board to enforce the excise law and the ordinances of the common council in relation thereto, and to report all violations to the law department immediately with the evidence. Fifteen per cent of the license money, if needed, is to be paid over to the inebriates home for Kings county ; also all fines for intoxication and violations of the excise law, and the balance of the excise money goes to the city. 62 EXCISE AND HOTEL LAWS. It is made the duty of the attorney and counsel for the city to prosecute actions for fines and penalties. The substance, rather than the letter, of the excise law ap- plicable to the city of Brooklyn, has been given rather than take up so much space needlessly with a large amount of laws for the city government, which are interwoven with it, but not necessary t<> be given in this work. §81. -'City of 1 Buffalo. —Portions of chapter 430 of the Laws of 188<>, entitled c An act to establish a police depart- ment in the city of Buffalo, and to provide for the govern- ment thereof.' passed May 27, 1880. " From and after the time when the board of police cre- ated and established by this act shall enter upon the duties of their office, the said board of police shall be the board of commissioners of excise in and for the city of Buffalo, with all the powers conferred by chapter L75 of the Laws of 1870. upon boards of excise in cities, and subject to all the provisions of said chapter, and there shall be no other board of excise in said city. Said board shall have power and authority to revoke any licenses granted by them, or by their immediate predecessors in office, whenever it shall appear to their satisfaction that the person to whom such license shall have been granted is not a person of good moral character, or that such person permits the premises in which liquor is sold, pursuant to such license, to become disorderly, or anything to be done or committed therein or thereon contrary to peace or good order. All fees for li- censes which shall be issued by said board of police, acting as such board of commissioners of excise in the city of Buffalo, and all fines and penalties provided for by said chapter, shall be paid to and received by the clerk of the said board of commissioners of excise ( which clerk the said board of police acting as a board of commissioners of ex- cise is hereby authorized to appoint), and be by said clerk paid, daily, to the treasurer of the city of Buffalo, and by said treasurer credited to the police fund of said city for the use and benefit thereof, and applied in payment of the expenses of the police department created and established by tins act. The said clerk of the board of commissioners of excise shall, before he enters upon the duties of his office, EXCISE AND HOTEL LAWS. 63 execute and tile with the city clerk of the city of Buffalo a bond, in the penal sum of $10,000, with two or more suffi- cient sureties, to be approved by the mayor of said city, conditioned for the faithful discharge of his duties as such clerk, and for the accounting for and paying over to the treasurer of the city of Buffalo all moneys which shall come into his hands, or under his control as such clerk. Said bond shall be to the city of Buffalo as the obligee therein, and said city may maintain an action against the said clerk and his sureties on said bond for any breach of the condi- tions of said bond. The said board may remove said clerk from office at pleasure. (Section 42, id.) The justices to the police in said city, shall have power to try cases of drunkenness. All fines and penalties im- posed by any or either of said justices to the police, shall be paid over every week to the treasurer of the city of Buf- falo/' (Part of section 23, id.) §82. "Town of Haverstraw, Rockland county — c An act in relation to the temporary relief of the poor in the town of Haverstraw, Rockland county,' passed March 11, 1879. " Sec. 8. All persons are hereby forbidden from selling or giving any wine, spirituous or intoxicating liquors of any description, to or for any person whom they shall know or have reason to believe to have received aid for himself or family from the overseer of the poor of said town, who or whose family is or are at all dependent upon the over- seer of the poor of said town for relief or support. Any person offending against the provisions of this section shall be deemed guilty of a misdemeanor, punishable for each offense by fine not exceeding fifty dollars, or by imprison- ment in the county jail not exceeding three months, or by both such fine and imprisonment. Any person who, upon an order or request of an overseer of the poor of said town to furnish supplies for the relief of any poor person or family, shall furnish or deliver any wines, spirituous or in- toxicating liquors of any kind or description, shall be guilty of a misdemeanor, punishable by a tine not exceeding $250, or by imprisonment in a county jail not exceeding one year, or by both such fine and imprisonment. This section shall not apply where the wines, spirituous or intoxicating 64 EXCISE AND HOTEL LAWS. liquors are furnished or supplied as medicine, in case of actual sickness, upon the written certificate of the attend- ing physician of its necessity, accompanying the order of the overseers of the poor. No evidence shall be received or deemed competent or sufficient proof of the fact, except the original certificate and order received, taken and re- tained at the time of delivery. ' ' Sec. J 0. Whenever, upon examination by the overseer of the poor, upon any application for relief, he shall ascertain or be informed that the destitution rendering such relief neces- sary is in part or wholly attributable to the intemperance of the person applying, or of any member of the family, lie shall give notice thereof to all vendors of intoxicating liquors in the town or vicinity, and forbid the sale or furnishing to such intemperate person of any wines or spirituous liquors whatever. He shall then forthwith enter in his said book a memorandum of the time and to whom such notice was given. Whenever the overseer of the poor shall ascertain, or be informed of the sale or furnishing any wines or spiritu- ous liquors to any poor person contrary to the provisions of this act, it shall be his duty forthwith to enter complaint therefor and have the offender prosecuted. This require- ment, however, shall not be construed to prevent any citi- zen of said town from making complaint, and procuring the prosecution and conviction of any offender against the provisions of this act." (Sections 8 and 10, chapter 74, Laws of 1879 ) § 83. "Village of Medina.— Portions of chapter 39 of the Laws of 1874, entitled 'An act to reorganize the village of Medina.' "The board of trustees shall be the commissioners of excise of said village of Medina, and shall possess the powers and perform the duties of boards of commissioners of excise and be subject to the excise laws of this State, except as modified by this act. They shall meet but one day in each month. The compensation of each commissioner of excise shall be two dollars for each day of actual service. Their expenses for necessary books and blanks shall be audited and paid as other village charges. (Section 1 of title 6, as amended by chapter 453, 1875.) EXCISE AND HOTEL LAWS. 65 "The hoard of trustees, upon application being made therefor, may grant license to sell or dispose of malt, spir- ituous or intoxicating liquors within said village of Medina, for the period of one year, or until the next annual charter election; provided, that every husband, wife, child, parent, guardian or employer, or other person who shall be injured in person, property or means of support by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, such husband, wife, child, parent, guardian, employer or other person, shall have a right of action in his or her name, severally or jointly, against any person or persons who shall, by selling or giving intoxicating liquors, have caused the intoxication in whole or in part of snch person or persons, and the owner or owne rs of, lesse or person or persons renting or leasing any building or premi- ses, having knowledge that intoxicating liquors are to be sold therein, or having leased the same for other purposes shall permit intoxicating liquors to be sold in such building or premises, that have produced the intoxication in whole or in part of such person or persons, shall be liable, severally or jointly with the person or persons selling or giving such in- toxicating liquors, for all damages sustained. All damages and costs assessed or recovered against any person or per- sons in consequence of the sale of intoxicating liquors, as provided in this section, shall be a lien npon real estate and personal property of such person or persons of every kind, without exception or exemption, and shall continue to be a lien upon the said property until said damages and costs are paid, and any justice of the peace of said county of Orleans shall have jurisdiction of snch actions when the amount claimed does not exceed $200. (Section 2 of title 6, id.) ' 'All habitual drunkards in said village shall be deemed vagrants under the provisions of the second title of the twentieth chapter of the first part of the Revised Statutes, and may be proceeded against accordingly ; and in addi- tion to the persons mentioned and described in the fifth title in the twentieth chapter of the first part of the Revised Statutes, all persons who shall be intoxicated in said village under such circumstances as to amount to a violation of the public decency ; all persons who shall sell intoxicating 5 66 EXCISE AND HOTEL LAWS. liquors without a license in said village, shall be deemed and are hereby declared disorderly persons in said village, and shall be proceeded against and punished accordingly ; and any person charged with any offense specified in this section which is. by existing law, a crime or misdemeanor, may be proceeded against under the present or existing provisions of law, or under the provisions of this act." (Part of section 3, title 5, id.) § 84. "Allegany county — 'An act providing for the dis- posal of excise moneys in the county of Allegany." passed April 8, 1871.' "Sec. 1. As long as the poor of the county of Allegany shall be supported by the county at large, all moneys de- rived from excise licenses and fines, in any town or village of said county, pursuant to chapter 175 of the Laws of 1870, entitled 'An act regulating the sale of intoxicating liquors,' and all acts amendatory thereof, shall be deposited with the county treasurer of said county, within thirty days after receiving the same, to be expended under the direction of the board of supervisors of said county, at their next annual meeting, for the support of the poor of said county. " Sec. 2. All provisions of chapter 175 of the Laws of 187<>, inconsistent herewith, are hereby repealed, in so far as the same apply to the county of Allegany.' ' (Chapter 380 of the Laws of 1871.) § 85. Richmond county. — Chapter 297, 1373, entitled 'An act for the benefit of common schools in the county of Rich- mond,' passed April 25, 1873. u Sec. 1. All moneys collected in the county of Richmond for and on account of licenses, penalties and fines for the sale of liquors, and all moneys which have been heretofore collected for licenses, penalties and fines for the sale of liquors in said county and now in the hands of supervisors, or any of them, or in the treasury of said county, shall be paid over to the treasurer of the said county for the benefit of common schools in the said county ; said moneys to be apportioned by the school commissioner of said county among the several school districts thereof, and paid by the county treasurer upon the order of the school commissioner EXCISE AND HOTEL LAWS. 07 to the proper school officers authorized to receive the same, in the same manner as prescribed for the apportionment and distribution of school moneys received from the State ; pro- vided, however, that all the moneys collected in and received from each town in said county shall be distributed and ap- portioned among the several school districts in each town respectively. "See. 2. The village of Port Richmond, in said county, is hereby excepted from all th* 1 provisions of this act." § 86. "City of New York.— Portions of chapter 410, 1882, entitled 'An act to consolidate into one act and to declare the special and local laws affecting public interests in the city of New York :' passed July 1. 1882. " Sec. 109. The mayor shall, on the first Monday of Apiil, 1883, and in every third year, nominate to the board of ald- ermen three good and responsible citizens to be commis- sioners of excise. Said board shall confirm or reject such nominations. In case of the rejection of such nominees, or any of them, the mayor shall nominate other persons as aforesaid, and shall continue so to nominate until the nomi- nations shall be confirmed. The terms of office of such per- sons shall commence on the first day of May succeeding the date herein fixed for their nomination. Any person ap- pointed after the commencement of the term, as herein prescribed, shall hold only until the expiration of such term and until a successor is duly appointed and qualified. Any one or more of the commissioners so appointed shall have the power to act as a board of excise until the others shall be duly appointed. They shall, except as herein otherwise provided, hold their offices for three years and until others shall be appointed in their places and have qualified. The mayor shall, from time to time, as often as vacancies shall occur, appoint persons qualified, as aforesaid, to fill the un- expired term of any commissioner who shall die, resign, remove from the city, or be removed from office. Commis- sioners of excise shall be removed for any neglect or mal- feasance in office, in the same manner as provided by law for the removal of sheriffs. " Sec. 86. The common council shall have power to make ordinances, — in relation to intoxication, fighting and quar- 68 EXCISE AND HOTEL LAWS. reling in the streets. (Subdivision 13.) And for regulating boarding-houses and taverns, and preventing the resort of crowds of disorderly persons to them. (Subdivision 34.) " Sec. 208. There shall be paid annually out of the excise moneys of the city of New York, to the Home for Fallen and Friendless Girls in said city, the sum of $150, for the support of every fallen and friendless airl received and sup- ported by said corporation in their Home for Fallen and Friendless Girls for the year for which such payment shall be made, and a proportional sum for a shorter period in the same year. "Sec. 210. Said board of estimate and apportionment is authorized, from time to time, and in sums according to its discretion, by resolution of said board, to appropriate all excise moneys derived by the excise commissioners in said city from licenses for the sale of intoxicating liquors, to such benevolent or charitable institutions in said city which shall gratuitously aid, support or assist the poor thereof as may seem to said board deserving or proper; but no such resolution shall be valid unless adopted by a majority vote of all the members of said board ; and the comptroller shall draw his warrants in favor of suoh institutions respectively mentioned in such resolutions according to the tenor thereof, and the chamberlain shall pay such warrants out of the said moneys received for licenses. The term 'poor,' as used in this section, shall only include persons who would other- wise become a charge upon said city as foundlings, orphans, and such prostituted or fallen women or juvenile delinquents as may be committed to or cared for gratuituosly, in or by any refoimatory institution, protectory, or juvenile asylum, persons who are supported, relieved, or cared for gratui- tuosly in or by any charitable institution for the care or relief of the ruptured or crippled, the cure of hip or spinal diseases, the sick or the destitute, friendless or infirm, in- cluding the children of volunteers dying in the late civil war, and the care and instruction of idiots, the deaf and dumb, the blind and the insane. No payments shall be made in pursuance of this section except as a per capita allowance for the poor and destitute persons actually supported, treated, cared for, or educated in the institutions referred EXCISE AND HOTEL LAWS. 69 to in this section, except in the case of the American Female •Guardian Society and Home for the Friendless, the Chil- dren's Aid Society, and the Shepherd's Fold of the Protest- ant Episcopal Church, which shall severally receive only the same amounts as provided by other provisions of law. 44 Sec. 391. The board of public charities and correction are authorized and empowered to maintain, manage and control an asylum for inebriates erected on land belonging to the city and under their control, and the appurtenances thereto, as in the judgment of said commissioners may be necessary and proper. The said board are also authorized and empowered to appoint and employ all such physicians, surgeons, officers and attendants as may be necessary and proper for the management and direction of said asylum, and the care of the inmates thereof, and to fix the compen- sation of such employees in the same manner and with the same power as in respect to the persons employed in other institutions under the control of said board. "Sec. 392. The necessary expense of maintaining such asylum, and its appurtenances, shall be provided for in the same manner as the expenses of the other institutions under the control of the said commissioner. The said board are authorized to demand and receive all fines imposed for in- toxication or disorderly conduct in the city of New York, which fines, without any deduction, shall be paid over monthly by the magistrate, clerk or other person who re- ceives the same, to the said board, and shall be by it ap- plied and accounted for as other moneys received by it by virtue of this chapter. "Sec. 393 The said board shall make all needful rules and regulations for the government of said asylum, and shall provide for the proper support and maintenance of the in- mates thereof, and especially for such medical treatment as will be effectual for, or tend to the curing of, such inmates of the habit of inebriety and diseases induced thereby; and they shall have full power and authority to regulate and control the inmates of said asylum, and to establish such provisions for moral and sanitary discipline as they may deem expedient. "Sec. 394. The estate of any person committed to such 70 EXCISE AND HOTEL LAWS. asylum, and the person committed, shall l>e liable for the support of such person therein, and the committee of every such person shall pay out of his estate such reasonable and proper sum as shall be fixed by the justice or judge order- ing the commitment. The said board of public charities and correction shall have authority to bring and maintain actions, in any court of competent jurisdiction, against the committee or guardians of the estate of any person com- mitted to said asylum as aforesaid, or against any person, so committed, for the support and maintenance of such person while in said asylum. Such actions may be brought by said board in the name of the mayor* aldermen and commonalty of the city of New York, and all recoveries had in such actions shall inure to the city of New York, and all amounts collected thereon shall be received by said board, and accounted for in the same manner as all other moneys which it is by law authorized to receive. " Sec. 395. It shall be lawful for the said board of chari- ties and correction to transfer from the alms-house and work-house under their control, to said inebriate asylum, any person committed to the alms-house or work-house, who, in the judgment of said board, shall be fit and proper subjects for said asylum, and, in their discretion, to return such persons to the alms-house or work -house ; provided, however, that no person shall, by reason of such transfer, be restrained of his liberty for a longer term than required by his original sentence or commitment. 4k Sec. 413. It shall be lawful for the said board, and it shall have power, in relation to all persons who shall here- after be committed to any institution under their charge as vagrants, by reason of their being 'persons who shall have contracted an infectious or other disease in the practice of drunkenness or debauchery, requiring charitable aid To re- store them to health,' after the same shall have been under medical treatment sufficiently cured to be discharged or to work or labor, in their discretion to detain such person or persons, and transfer or commit them to the work-house until, from the proceeds of their work and labor, there shall have been received by said board, beyond the charge of their support while in said work-house, a sum sufficient to reim- EXCISE AND HOTEL LAWS. 71 burse all the expenses of their charge and cure while under medical treatment as aforesaid, provided that under this section no such person shall be detained or committed to said work-house for a longer period than six months. "Sec. 414. The said commissioners shall not, in the cases where by law they are empowered to discharge vagrants from the institutions under their control, hereafter dis- charge any of said vagrants from custody before the ex- piration of their terms of imprisonment, without the written consent of the committing magistrate in each case. "Sec. 1098. The justices of the Supreme Court, in the exercise of their jurisdiction within the city of New York, the justices of the superior court of said city, and the judges of the court of common pleas in and for the county of New York shall have power to commit to the inebriate asylum, under the control of the commissioners of charities and correction, for a term not to exceed two years, all per- sons who, being actual inhabitants of the said city, shall be incapable or unfit for properly conducting their own affairs in consequence of habitual drunkenness. Such com- mitment shall be made by any of said justices or judges, in any case where the facts referred to in this section shall be made to appear by petition or complaint, duly verified and presented by any relative of such habitual drunkard, or by the commissioners of public charities and correction, or any officer of the police doing duty within the said city, and upon return of a commission issued upon such petition or complaint. "Sec. 1099. Upon the presentation of such petition or complaint, the justice or judge to whom the same shall be presented shall proceed in the same manner as is directed in title 6 of chapter 17 of the Code of Civil Procedure, in relation to the care and custody of the persons and estates of idiots, lunatics, persons of unsound mind and drunkards, and according to the rules and practice of the Supreme Court in such cases. "Sec. 1100. Upon becoming satisfied, by return of a com- mission as heretofore provided, that any person is an habitual drunkard and incapable, in consequence thereof, of conducting his or her own affairs, said justice or judge 72 EXCISE AND HOTEL LAWS. shall have power, in his discretion, to issue his warrant, committing the person so found to be an habitual drunkard to the custody of the said commissioners of public chari- ties and correction, to be detained in the said asylum for such period, not exceeding two years, as the said justice or judge may deem proper, and such warrant shall be executed by any member of the police, upon the request of said com- missioners, or one of them. Any such warrant, duly issued, shall be full and sufficient justification for all acts done by any properly authorized officer, under and in accordance therewith. "Sec. 1101. Any justice or judge before whom proceed- ings may be pending under the three preceeding sections may, after filing any complaint, and when in his judgment the circumstances of the case render it proper so to do, com- mit the person charged with being an habitual drunkard to the said asylum while proceedings on such complaint are pending, and all persons so temporarily committed shall be discharged from said asylum if, on return of a commission, it shall be determined that they are not proper persons to be detained. " Sec. 1102. Any person committed to the said asylum, by order of any just ice or judge as heretofore provided, may be discharged therefrom at any time before the expiration of the time for which such person was committed, upon the order of any justice or judge having jurisdiction as herein provided, upon such justice or judge being satisfied that such, person is cured and fit to be released. Application for such discharge may be made by any person, provided, how- ever, that previous notice of such application shall be given in writing to the said commissioners of public charities and Correction. Upon any such application being made, the justice or judge receiving the same shall proceed in the same manner as upon writs of habeas corpus. kt Sec. 1464. All persons who, being habitual drunkards, are destitute and without visible means of support, or who, being such habitual drunkards, shall abandon, neglect or refuse to aid in the support of their families, who may be com] ..ained of by such families ; all persons who shall have contracted an infectious or other disease in the practice of EXCISE AND HOTEL LAWS. 78 drunkenness or debauchery requiring charitable aid tore- store them to health, shall be deemed vagrants. (Part of section only.) "Sec. 1465. It shall be the duty of every peace officer, whenever required by any person, to carry, convey or con- duct such vagrant before the recorder or one of the police justices, for the purpose of examination. If such magis- trate be satisfied by the confession of the offender or com- petent testimony that such person is a vagrant within the description aforesaid, he shall make up and sign a .record of conviction thereof which shall be filed in the office of the clerk of the court of sessions, and shall by warrant, under his hand, commit such vagrant, if not a notorious offender, and he be a proper object for such relief, to the alms-house for any time not exceeding six months, there to be kept at hard labor ; or, if the offender be an improper person to be sent to the alms-house, then such person shall be committed for the like time to the penitentiary. "Sec. 1562. In all cases of arrest for intoxication or dis- orderly conduct in the city of New York, the police justices shall have power, in addition to holding the party to bail for good behavior, to impose a fine not exceeding ten dol- lars in each case, or to commit to the city prison not ex- ceeding ten days, each day of imprisonment to be taken as a liquidation of one dollar of the fine. " Sees. 1998, 2010. It shall not be lawful to sell or furnish any wine, beer or strong or spirituous liquors to any person in the auditorium or lobbies of any place of exhibition or performance, or in an apartment connected therewith by any door, window or other aperture, where any interlude, tragedy, comedy, opera, ballet, play, farce, minstrelsy or dancing, or any other entertainment of the stage, or any equestrian, circus or dramatic performance, or any perform- ance of jugglers or rope dancing or acrobats is exhibited. (Portions of above sections. ) "Sec. 2013. It shall be the duty of the superintendent of police, sheriff, deputy- sheriff, constable, captain of police, policeman, and every other police officer, to enter, at any time, said places of amusement, and to arrest and convey any person or persons violating any provision of the three 74 EXCISE AND HOTEL LAWS. preceding sections,'* forthwith, before any police justice or recorder or magistrate having jurisdiction in said city, there to be dealt with according to law. Incorporated Villages. § 87. By chapter 291, 1870, entitled "An act for the incor- poration of villages," all persons found intoxicated in the streets of the village, or persons who shall be guilty of noisy, riotous or tumultuous conduct disturb the quiet and peace of the village, or of any meeting or assembly therein, shall be deemed and are hereby declared to be disorderly persons under this act, and under any rule, by-law or ordi- nance adopted in pursuance thereof for the punishment of disorderly persons. (Part of section 18, title 8.) Any trustee or any police constable is hereby authorized to arrest any vagrant or disorderly person, with or without process, and take him or her forthwith before the proper officer. If such officer cannot be found, the persons arrest- ing may detain the person arrested, not to exceed twenty- four hours, until the proper officer to try such person is found. (Section 19, id.) * Section 2010 is one of the sections here referred to. EXCISE AND HOTEL LAWS. 75 CHAPTER II. SYNOPSIS OF THE GENERAL PROVISIONS OF THE EXCISE LAWS RELATING TO THE DUTIES, POWERS AND OBLI- GATIONS OF COMMISSIONERS OF EXCISE, OVERSEERS OF THE POOR AND HOTEL KEEPERS. SECTION I. Commissioners of Excise. Commissioners of excise are elected in towns like other town officers, one in each year, and hold their office for three years. They are voted for on a separate ballot, and should take the constitutional oath of office before entering upon the duties of their office. Each commissioner must execute a bond for double the excise money of the pre- ceding year, but need make only one bond during the term of office. The oath of office, and also the bond after b*4ng duly approved, should be filed in the town clerk's office of their town before entering upon their duties. The pay of commissioners of excise is three dollars per day. They should meet in their respective towns on the first Monday of May in each year for the purpose of grant- ing licenses, and at such first meeting should organize them- selves as a board, making one of their number chairman, and one secretary. The law provides that the board shall not appoint a clerk, but that means outside their own body ; the statute requires them to keep minutes, and, therefore, it is necessary that one of their number should keep them. The secretary so appointed should keep minutes of all their proceedings, as provided by statute, and deposit them with 76 EXCISE AND HOTEL LAWS. the town clerk. The secretary can receive no extra com- pensation as such. At other times they should meet on application made in good faith, but not oftener than once in each month. All licenses granted by them shall expire on the first Monday of May succeeding the date of granting the same. The act of 1845, allowing a local option vote, is generally acquiesced in as at least substituted by the election of excise commissioners by the people with power to grant or refuse licenses, and to approve of applicants and their qualifica- tions as well as the discretion to decide whether the appli- cants have a good moral character or not. This leaves the door open for a refusal to grant any license, as those of extreme views may claim no man to be moral who sells in- toxicating liquors, and on this ground alone might not "approve" of the applicant, The board cannot be com- pelled to grant licenses. The fee for a hotel license cannot be less than thirty nor more than $150 in towns, nor more than $250 in cities, and where the license is to run for less than one year a pro rata fee should be fixed upon. The board must keep a list of all persons and places licensed, and the fee charged, the same to be open for public ins})ection. The petition of twenty freeholders is no longer necessary. The board may also grant ale and beer licenses for a fee of not less than ten dollars, and the same rules apply on the applications therefor as above. The board shall grant no licenses, either for hotels or saloons, until all legal require- ments have been complied with, and each license granted must be signed by the board, or a majority of them. The commissioners must not onfy be satisfied of the moral character of the applicant, but that he has sufficient ability, and the accommodations necessary, and, also, that a hotel is necessary at the place where it is applied for. They shall exact a bond in the sum of $500, with two sufficient sureties, that he will not suifer his house to be disorderly, nor suffer any gambling, nor keep a gambling table in or connected with his hotel. In granting store licenses the same care is required as to character; the bond must be for $1,000, conditioned that EXCISE AND HOTEL LAWS. 77 the applicant will not suffer his place to be disorderly, and that liquors, wines, etc., shall not be drank on the premises. For a saloon or beer license a bond similar to that of hotel keepers must be given by the applicant, who, also, must be a person of good moral character. The commissioners sne for no penalties except in such towns as have no overseer of the poor, in which case it is their duty to sne for the same penalties, and in like manner, as overseers of the poor. When complaint is made by any resident of the town stating that a licensed person is gnilty of some violation of the excise law, the board, being invested with certain judi- cial functions, must summon before them the person licensed and complained of, and have an examination of the charges made, and if they are satisfied that the person is guilty of a violation they must cancel, revoke and annul his license. The board has the power to compel the attendance of wit- nesses on the examination, administer oaths and examine them. The board may employ an attorney to assist them in their investigation, and if they are satisfied that there has been a violation the license must be canceled, and they have the authority to enter the premises licensed for that pur- pose. The members of the board, as soon as elected, should see to it that their oath of office and bond are duly filed with the town clerk, as otherwise it might cause a vacancy, and so even if they proceeded to act without so doing. Should they proceed without filing their oath and bond, as between themselves and the public they would probably be dt facto as well as dejure commissioners, but whether they would be tu a position to enforce 4he provisions of the excise laws, would be a vexed question requiring tedious and costly liti- gation to decide. Within thirty days after receiving any excise moneys, it is the duty of the commissioners to pay the same over to the supervisor of the town, and they should be careful to take his receipt therefor. Their incidental expenses for books, etc., are to be collected the same as any other town charge. 78 EXCISE AND HOTEL LAWS. SECTION II. Overseers of the Poor. Undoubtedly the duties of overseers of the poor are as difficult under the excise laws as under the poor laws of the State. They are made public prosecutors in very diffi- cult cases. With few exceptions they are to bring all ac- tions of a civil nature for which penalties are liable to be paid under the excise laws. They are men who are not usually, by their business pursuits, qualified to manage difficult legal prosecutions ; but the statute having placed the responsibility upon them, they will, at times, be com- pelled by the force of moral pressure, if not from their ideas of duty, to prosecute for violations of the law. It is a recognized fact that the sale of intoxicating liquors is the cause of a large proportion of the pauperism of the country, so that in nearly all cases the fines and licenses are made to apply, directly or indirectly to the alleviation of distress, or the prevention of crime. It is made the duty of overseers of the poor to prosecute for the following penalties : 1st. Against hotel keepers for not keeping suitable ac- commodations, ten dollars. {Ante, section 19.*) 2d. Neglect to put up and keep up hotel sign, for each •month of failure, ten dollars. (Section 20.) 3d. For taking security for liquors trusted, a forfeiture of double amount intended to be secured. (Sec. 21.) 4th. Selling liquors in quantities of less than five gallons, forfeiture for each offense, fifty dollars. (Section 24.) 5th. Selling liquor to be drank on premises without a license, forfeiture, fifty dollars. (Section 25.) 6th. Against an officer for refusal or neglect to arrest «a person intoxicated in a public place, etc., fifty dollars. (Section 28.) 7th. Against a magistrate for refusal to entertain com- plaint, etc., fifty dollars. (Section 28.) 8th. Selling or giving liquor to an intoxicated £>erson, for- feiture, ten dollars to twenty-five dollars. (Section 29.) These penalties are to be sued for and collected by and * References to_sections in this chapter are to the statutes in Chapter I. EXCISE AND HOTEL LAWS. 79 in the name of the overseer of the poor of the town where the offense is committed, except in towns that have no over- Seer of the poor, in which case they are to be sued for by and in the name of the board of commissioners of excise of the town, and the money when collected paid over to the treasurer of the county for the support of the poor. (Sec- tion 33.) The overseer may discover what he regards as an omission in the above, in not alluding to the forfeiture or penalty of the bonds given by hotel keepers and other dealers, but it has been held that the penalty of the bond being a contin- gent liability, and not a penalty imposed, is not to be sued for by the oveerseers. Formerly only one action could be brought by the overseers, viz. : that enumerated in sec- tion 19. The other actions that are now given to overseers, were given to the board of commissioners of excise. By section 35 it is declared that, for the breach of the condition of the bond, it shall be the duty of certain parties to prose- cute, but does not say in whose name ; but as the bond is to the people, the action should be brought in the name of the people. Such an action being for a penalty to the peox^le, it should be brought in pursuance of section 1962, Code of Civil Procedure, by the district attorney or attorney-general. If the overseers of the poor, when entitled to sue for a penalty or forfeiture, neglect their duty for ten days, after complaint to them with reasonable proof, then any person may bring the action in their name. (Section 41.) It is assumed that where the punishment for any offense is called a line, that it is not such as could be collected by the overseer, but must be the result of a conviction in a court of competent jurisdiction. Section 41 seems to con- template a complaint before commencing a prosecution, but it is not necessary except to give any other person the right of action. But it is the better practice for the overseer to exact satisfactory proof of the violation of some act for which the statute gives a penalty, or have such investiga- tion as makes it satisfactory to him that an offense has been committed, before taking the chances of a prosecution. Every cautious man will prepare himself with weapons be- fore laying down the gauge of battle, and it is far easier to 80 EXCISE AND HOTEL LAWS. do this before the excitement of a litigation shall have com- menced ; then the parties who know the facts necessary to a safe conduct of the action, may have sealed their mouths and will say nothing, or the pressure of the friends of the opposite side has handicapped your best efforts. Owing to public sentiment being in the condition in which we find it, no one cares to cofne forward to the aid of the officer, and he must make up his mind to receive more blame than plaudits for performing his duty. The courts generally, however, are law abiding and will do their duty when once an action is before them in proper form. When the over- seers have neglected to bring the action, and it is brought by some one else, the overseer has no control over it and cannot discontinue it without consent of the person bring- ing it. Where there is more than one overseer in a town they should meet and act as a board. The same care is to be ob- served by overseers of the poor in regard to taking the oath of office and giving bonds as is required by commissioners of excise. The overseers have the right to employ an attor- ney to bring the action, and conduct their business for them; but the whole penalty and costs must be paid into the county treasury, and the attorneys fees paid as any other services performed for the town or county as the case may be. The decisions of the courts on the various questions affecting overseers of the poor in excise matters, will be found elsewhere. SECTION III. Hotel, Saloon a^d Store Keepers. To procure a license, the applicant should prepare a petition, in writing, to the board of commissioners of ex- cise, setting forth the kind of license, the place where, the name of the applicant or applicants, and every person in- terested or to be interested in the business, and present the same at their annual meeting on the first Monday of May, or, if desired, at some later period when the board may be called together for that purpose. He should also execute such a bond as is required by statute, with two EXCISE AND HOTEL LAWS. 81 sureties, and tender to the board the fee fixed for such license. After procuring the license to sell, it should be kept pub- licly posted in his place of business, and exhibited on de- mand to any peace officer. The applicant for license will find his first inquiry to be, am I a man of good moral character? That answered in the affirmative — as it very naturally will be in the case of the hotel keeper — have I sufficient ability and the neces- sary accommodations to entertain travelers? and then, is there a hotel required where I intend to keep one \ If the applicant is really anxious to keep a hotel, there will be no difficulty in his giving affirmative answers to these ques- tions ; and if there is a board in favor of granting licenses at all, the applicant has but little trouble in convincing it on these points. (Sections 17 and 23.) As the question is important as to the applicant' s compli- ance with his bond, especially if his place of business is in the country, where the question of excise is frequently dis- cussed, it is well to say here, that "to suffer his house to be disorderly" within the meaning of the statute, is a mat- ter very easy to accomplish ; the allowance of drunkards in his rooms, boisterous and unseemly conduct in frequenters of his house, gambling, keeping of bad characters of either sex in such a public and unseemly manner as to affect pub- lic decency, etc. (Section 63.) The keeping of any gaming table (and a billiard table is held to be a gaming table) works a forfeiture of his bond. (Section 18.) Hotel keepers must keep three spare beds, and sufficient accommodations for man and beast. (Section 19.) The following are penalties hotel keepers are liable to incur : 1st. Neglect to keep accommodations, penalty, ten dollars. (Section 19.) 2d. Neglect to put up and keep up a sign, per month for- feiture, ten dollars. (Section 20.) 3d. Securities for trusted liquors void, and double the sum intended to be secured forfeited. (Section 21.) 4th. Selling without a license, forfeiture, fifty dollars. (Section 24.) 6 82 EXCISE AND HOTEL LAWS. 5 tli. Selling without license to be drank on the premises, forfeiture, fifty dollars. (Section 25.) 6th. Selling to Indian or apprentice without consent, for- feiture to party injured, ten dollars. (Section 26.) 7th. Selling to minor under eighteen without consent of parent, etc., forfeiture to party injured, ten dollars. (Sec- tion 26.) 8th. Selling to Indian or minor under fourteen years, for- feiture to people by fine, twenty-five dollars. (Section 26.) 9th. Selling or giving liquors to intoxicated persons, for- feiture, ten to twenty -five dollars. (Section 29.) 10th. Selling or giving liquors to persons when notified that they are habitual drunkards, penalty, fifty dollars. (Section 30.) 11th. Selling or giving liquors to habitual drunkards, fine, twenty to fifty dollars, and the forfeiture of license. (Sections 31 and 48.) 12th. Selling to any person when notified not to do so by parent, guardian, etc., fine, twenty to fifty dollars, and the forfeiture of license. (Sections 31 and 48.) 13th. Selling or giving to pauper or inmate of poor-house, fine twenty-five dollars, and imprisonment not more than sixty days. (Section 31.) 14th. Selling or giving away liquors on Sunday, etc., im- prisonment and fine, thirty dollars to 8200. (Section 32.) 15th. For breach of condition of bond, recovery of the penalty, $250. (Section 35.) 16th. Conviction of any offense, forfeits license. (Section 37.) 17th. Selling contrary to law and to persons to whom it is unlawful to sell, liable for the injury. (Section 39.) 18th. Adulterating or selling adulterated liquors, etc., imprisonment three months and fine, §100. (Section 40.) 19th. Selling liquor in court house, misdemeanor. (Sec- tion 54.) 20th. Allowing minor under fourteen in certain places, misdemeanor. (Section 58.) 21st. Permitting child under sixteen to play, etc., where liquor is sold, etc., misdemeanor. (Section 59.) 22d. Damages given under the civil damage act. (Sec- tions 69 and 70.) EXCISE AND HOTEL LAWS. 83 It will, therefore, be observed that the vendors of intoxi- cating liquors are hedged roundabout with many require- ments, and it stands them well in hand to observe the rules laid down for their guidance. They should carefully read the law affecting their interests, and as near as possible obey it. In many cases they are ignorant of the law, and although ignorance of the law is no protection, there is no doubt but that if they were fully informed of their liabilities under the excise law, they would be more guarded. The near location of other drinking places also gives the opportunity for a person who is habitually in the habit of using intoxicating liquors of becoming well nigh intoxicated at one place, and then by drinking once at some other place he becomes intoxicated, and it is a severe test of judgment to decide when and where the man became intoxicated. The law requires hotel or saloon keepers, under a penalty of ten to twenty-five dollars, to be correct judges as to whether a man is intoxicated or not. If he sells with a license to a per- son when not intoxicated, well and good ; but he must be careful to know, what is almost impossible, viz. : when a man is intoxicated. The safest thing to do is to entirely repudiate in a hotel the society of men who make it a practice of drinking to excess. Then the danger of selling to drunken men is avoided, the tone and character of the hotel is elevated, and the moral tone of the place where such hotel is situated is enhanced. And if a hotel keeper is careful, and endeavors to keep within the law, no technical liability is ever pressed or complaint entertained by the courts. 84 EXCISE AXD HOTEL LAWS. CHAPTER III. THE PRINCIPLES OF LAW RELATING TO EXCISE AXD MATTERS COXXECTED THEREWITH. SECTION I. Commissioners of Excise, their Election and Appoint- ment, Qualifications, Powers and Duties. Election. — Since 1874 excise commissioners, except in cities, have been elected like other town officers, one in each year. They are not to be a supervisor, justice of the peace, town clerk or trustee of a village. (Sections 1 and 2.*) The ballot should be prepared with care and made to comply with the statute, otherwise an election contest might be the result. Commissioners of excise should be voted for upon a separate ballot. (Section 2.) The ballot should have a caption in one straight line in black ink, in "Great Primer, Roman Con- densed Capitals," and the name printed in plain type, with letters of uniform size, also printed with black ink. The bal- lot should be upon plain white printing paper, without im- pression, device, mark or other peculiarity whatsoever upon or about it, except the name of the candidates. (Chapter 336, 1880.) The ballot should be as follows : FOR COMMISSIONER OF EXCISE. For Commissioner of Excise, JOHN DOE. This ballot should be folded so that only the caption shall * The sections referred to in this chapter are to the Statutes in Chapter I. EXCISE AND HOTEL LAWS. 85 be in sight, and so given to the inspectors, and by them de- posited in a separate box marked "excise." Appointment. — In towns vacancies in the office of com- missioners of excise can be filled by appointment ; town boards having the appointing power. (Section 1.) In cer- tain cities and villages special acts provide for the appoint- ment, election, and who shall be commissioners of excise, and their powers and duties are provided for, while section 4 is general in its application and provides for the appoint- ment of commissioners by the mayors of all cities except JSTew York, Brooklyn and Ponghkeepsie. It has been held that when special provision was made in city charters, for the appointment of commissioners of excise, or other pro- visions specially applicable to city government, that these special provisions were not repealed by the subsequent pass- age of a general statute purporting to extend over the whole of the State. {Village of Glover smile v. Howell, 70 N. Y., 287.) The special acts, and extracts from charters, for certain cities, in relation to appointment of commissioners of excise and other matters relating to the excise laws, are given in the following sections of Chapter I : For New York, sections 4, 6, 7, 8, 9, 10, 86; for Brooklyn, sections 4, 6, 7, 8, 9, 10, 80; for Ponghkeepsie, sections 4, 75 ; Newburgh, 72; Kings- ton, 74 ; Yonkers, 76 ; Lockport, 77 ; Rochester, 78 ; Troy, 79; Buffalo, 81; Haverstraw, 82; Medina, 83; Orange county, 73; Allegany county, 84; and to all cities of the State, 11. There are some few other special acts for particular towns and cities in this State, connecting in some slight manner commissioners of excise with the city or village government, which are not considered of sufficient importance to embody in a work of general interest. Appointments by mayors of cities, or by town boards, or other appointing power, must be in writing and signed by the party or parties making the appointment or the presid- ing officer. (People ex rel. Kresser v. Fitzsimmons et al., 68 N. Y., 515 ; People ex rel. Bdbcock v. Murray et at., 70 id., 521.) This latter case went twice to the general term (5 Hun, 42; 8 id., 577), and the decision was reversed by the Court of Appeals, where it was held as above. 86 EXCISE AND HOTEL LAWS. No particular form of appointment is required, neither is it necessary to be delivered. It is sufficient if it is made in writing and signed by the proper party or his legal repre- sentative. {People ex rel. Kresser v. Fitzsimmons, surpra.) A commissioner cannot assign or transfer his office, and he can only be divested of it in one of the seven ways pointed out by statute, viz.: death, resignation, removal, ceasing to be a resident, conviction for crime, refusal or neglect to take the oath of office or file his bond, or by a decision of a competent tribunal. {People ex rel. BabcocTc v. Murray, supra ; IK S., 122, § 34.) Qualification. — Once elected or appointed, he should, be- fore entering upon the duties of his office, take and file with the town clerk of his town his oath of office. This oath should be taken before the town clerk or a justice of the peace. A notary public is not authorized to administer oaths of office. (Section 37, article 2, title 3, chapter 11, part 1, Revised Statutes.) He should also, before entering upon the dufies of his office, execute a bond to the supervisor of the town, to be approved by him, in double the amount of the excise money of the preceding year. (Section %.) There is no time fixed by the statute when the oath and bond are to be executed and filed, except "before they enter upon the duties of their office." The statute provides that any town officer enter- ing upon the duties of his office, without taking the oath of office, shall forfeit to the town the sum of fifty dollars. (1 Revised Statutes, 834, § 55, 6th ed.) P oioer s and Duties. — Boards of commissioners of excise have the power to grant licenses to such persons as shall be approved by them (section 12), for a license fee of from five- dollars to $250. Five dollars for innkeepers license without excise license (section 52) ; ten dollars and over for ale and beer licenses (section 34), and thirty dollars to $250 for htel and store licenses. (Section 12.) Although it is made the duty of the commissioner to file his oath of office and execute his bond before entering upon his duties, yet, if he acts as commissioner without it, under and by virtue of his election, it does not work a forfeiture of the office that can be filled by appointment or election. EXCISE AND HOTEL LAWS. 87 One B. was elected as commissioner of excise for three years ; lie executed a bond which was approved by the town clerk, when it shonld have been by the supervisor. He met with the other two commissioners and acted with them. Afterward, and during B.'s term, the people of the town, assuming that there was a vacancy by the failure of B. to tile a proper bond, at the annual town meeting pro- ceeded to elect two commissioners — K. to fill the supposed vacancy, and Bliss for the full term. After qualifying, Bliss and K. met as an excise board, and granted the de- fendant a license. B. and L., the other commissioners, met but granted no licenses. The overseer of the poor com- menced an action against the defendant for selling liquor without a license. He claimed protection under his license granted by Bliss and K. The court held that B., having acted as commissioner before the election of K., was both de j'urc and de facto commissioner, and that the license granted by Bliss and K. was wholly void. (Uronin v. Gundy, 16 Hun, 520.) The rule is, that where a party claims to hold an office, and performs its functions, his acts are as valid as to the public and third persons as though he rightfully held the office. This may be defeated by judicial proceed- ings taken to declare the office vacant, but not otherwise. (Id.) There cannot, however, be one officer holding dejure and another de facto at the same time. {Board/man v. Hai- ti day, 10 Paige, 223; Morgan v. QuackenbusTi, 22 Barb., 72.) An omission to file a bond by an officer does not make the office vacant. He holds by a defeasible title, and is right- fully in office as to third persons, and the question cannot be raised collaterally. {Foot v. Stiles, 57 N. Y., 399.) But a different rule prevails where the officer seeks to enforce a right by his suit as such officer. In such a case the defend- ant may deny the plaintiff's official character, such as his failure to take the oath of office, or give security, and so is not a legal officer. ( The People v. Hopson, 1 Denio, 579 ; People ex ret. v. Nostrand, 46 ~N. Y., 375.) When one man attempts to exercise dominion over the person or property of another, it becomes him to see that he has an unques- tionable title. (Tlie People v. Hopson, supra.) Town or county officers may employ an attorney where ss EXCISE AND HOTEL LAWS. the duties devolving upon them make it necessary, it was so held as to commissioners of excise when they were county officers in The People v. Board of Supervisors of Delaware County (45 X. Y., 196), and the same rule would extend to the overseers of the poor who are directed to perform cer- tain duties and bring certain actions, heretofore devolving upon boards of excise. (See sections 33 and 49.) And the board of auditors, whether they be town or county, must act upon any claim for services. As to the duties of such board, see People v. Supervisors, supra, and People ex rel. Thurston v. Auditors (20 Hun. 150). The board of com- missioners cannot, however, give general powers to an at- torney to act in his discretion. The majority of the board must act. (Board of Excise v. Sackrider, 35 X. Y.. 154.) The legal fees and reasonable disbursements for subpoena- ing witnesses, etc.. if necessary, are a lawful charge by the attorney or commissioner. (The People v. Supervisors, supra.) So are the fees of sheriffs and other officers. (People ex rel. Kelley v. Haws. 21 How.. 117.) Claims for such services against political divisions of the State, such as towns and counties, should be presented and audited, and. for a failure to audit, mandamus is the cor- rect remedy. But this principle does not extend to village or city corporations existing under special charters : in such cases actions may be brought on failure of the corporation to pay in the ordinary way. (Buckx. The City of Lock- port. 6 Lans.. 254. ^> This is the established rule in this State. (McCullock x. Mayor of Brooklyn. 23 Wend., 458 ; Beard v. City of Brooklyn, 31 Barb. 142 ; Gansonx. City of Buffalo. 1 Keyes, 454 : Baldwin x. City of Oswego, 2 id., 132.) Mandamus will not lie in such cases : an action is the- only remedy. (Buck x. The City of Lockport, 6 Lans., 251.) Commissioners of excise may still bring actions for penal- ties, where there are no overseers of the poor. ( Section 33.) They should meet as a board, and all should be notified to attend all meetings for the performance of their duties in granting or canceling licenses. But the presumption will be that they did meet, in any actions or proceedings instituted by them in reference to such licenses. It is in- EXCISE AND HOTEL LAWS. 89 cumbent upon a defendant to clearly show the contrary. {Board of Excise of Saratoga County v. Doherty, 16 How., 46; Board of Excise v. SacArider, 35 N. Y., 154.) In em- ploying ail attorney, the board, or a majority, must act or authorize the act. (Id.) The duty of revoking licenses depends upon the satisfac- tion of the board that the licensee has violated some pro- vision of the statute. (People ex rel. Funke v. Board of Excise, 24 Hun, 195.) Any number of a board of excise, less than the whole, is not tlte board, so that to serve papers upon the excise board, each member must be served to confer jurisdiction. The board is not a corporation. [Metcalf v. Garlinghouse, 40 How., 50.) In their proceedings under section 49, they have the power to proceed on their own volition, or upon complaint, to investigate the propriety of a revocation of the license. If a complaint is made they shall proceed to the examina- tion. They may summon witnesses before them, and swear them, or they may proceed in any manner to satisfy them- selves. A license is a present right and not a vested one. It can be taken away by the same power that conferred it, on the board becoming satisfied that the license was unworthily and improperly bestowed. In exercising their discretion in such matters, the court will not interfere. They cannot be coerced by mandamus or otherwise, and for a mistake they are not liable civilly or criminally. (People ex rel. Belter v. Wright, 3 Hun, 306-308 ; People ex rel. Funke v. Board of Excise, 24 id., 195; Ex parte Persons, 1 Hill, 655; Peo- ple v. Norton, 7 Barb., 477; People v. Jones, 54 id., 315.) Selling beer on Sunday, or keeping open a saloon on that day for a public sale, is a violation of the statute for which the commissioners may, on their motion, or on the com- plaint of any other person, examine as to the truth of and may cancel the license. (People ex rel. Presmyer v. Com- missioners of Police et al., 59 X. Y., 95.) It is not a con- viction, but simply determines whether the licensed party continues to be a suitable person to sell liquors. The stat- 90 EXCISE AND HOTEL LAWS. nte itself determines that a violation of the excise law, by one holding a license, is not a suitable person. (Id.) Commissioners are entitled to pay for their services, not only in meeting to grant licenses, but for annulling them, or for other necessary labor. (The Board of Commission- ers of Excise v. Doherty, 16 How., 46-50; People ex rel. Plumb v. Supervisors of Cortland County, 24 How., 119.) Commissioners are vested with large discretion, and the courts, as has been shown, will not interfere with that dis- cretion, where there is opportunity for its exercise. But when they act willfully and corruptly, and grant a license to an innkeeper, knowing that he is not a man of good moral character, nor a person of sufficient ability to keep a hotel, and that he has not the necessary accommodations to entertain travelers, and that a hotel is not absolutely neces- sary at the place where he proposes to keep a hotel, they are liable to indictment. They do not act solely as judicial officers. Their duties are so plainly defined that if they willfully disregard them, they are liable. (People v. Nor- ton, 7 Barb., 477 ; People v. Jones, 54 id., 311-315.) After they have met and decided to grant licenses, they can be compelled by mandamus to do so, but not before. {Matter of KeJley v. Excise Commissioners, 54 How.. 327.) But a mandamus will not be awarded to compel an act by a public officer in respect to which he may exercise judgment or discretion. (People ex rel. Hammond v. Leonard, 74 IS". Y., 443.) The commissioners are liable criminally for an unlawful and corrupt exercise of the powers vested in them. While they are responsible only for good faith and integrity, they cannot, from corrupt motives, either grant or refuse a li- cense improperly, and shield themselves under the judicial character of their office. (People v. Jones et al., 54 Barb., 311.) An indictment for willfully and corruptly granting a license to a person to sell spirituous liquors as an innkeeper, the commissioners knowing that the applicant was not a man of good moral character, nor a person of sufficient ability to keep a hotel, was sustained on demurrer in Peo- ple v. Norton (7 Barb., 477). And the reasoning of the court was entirely conclusive. (People v. Jones, 54 Barb., EXCISE AND HOTEL LAWS.j 91 310.) To constitute the offense, the license must have been granted with full knowledge of the facts, and willfully and with intent to violate the statute. (Id.) SECTION II. Licenses. By section 2 of the act of 1857 (section 13), there were two kinds of licenses allowed to be granted, one to hotel Jveepers and one to store keepers. The act of 1869, provided for ale and beer licenses. In 1870 and 1873, section 12 was enacted as it now is, and it was for a time supposed that this section provided for a new kind of license, without limit as to where the liquor should be drank, and that it superceded section 2 of the act of 1857. It was thus held by the general term in Smith v. People (9 Hun, 446). Justice E. D. Smith, in writ- ing the opinion, says : "The act of 1870, was obviously in- tended to change the law in regard to the sale of intoxicating drinks, and to introduce a new system, and not to amend an old law. No license is required for the sale of intoxicating drinks of any kind, except the license prescribed in section 4 of the act of 1870. (Section 12.) It prescribes a single form of license for tavern keepers, grocers and store keepers, and all other persons asking a license to sell intoxicating drinks.-' This was an end devoutly to be wished, by those who wanted as extended licenses as possible. This was in December, 1876. It had been held differently in (J RuurJce v. People (3 Hun, 225), two years before ; but Mr. Justice Smith claimed that the decision in Smith v. People was not necessarily different from the case in 3 Hun, as that was a case of indictment for selling ale. The case of The People v. Smith went to the Court of Appeals, and is reported in 69 N. Y., 175, and was reversed, the case in 3 Hun receiving confirmation, and the following seems to be the rule as gleaned from these two cases : Sec- tion 12 is not a new law, but a kind of preface to section 13, although passed several years after, and merely explanatory of a previously passed act ; that it repealed only so much as did away with the petition of twenty freeholders. The case of Smith v. People arose in Jefferson county. Smith, the 92 EXCISE AND HOTEL LAWS. defendant, was indicted for selling liquor by small measure to be drank on the premises. He admitted selling the liquor, but defended by virtue of a license drawn according to sec- tion 12, claiming that that law did not restrict him from selling in small quantities to be drank on the premises, he not being a hotel keeper. Judge Folger wrote the opinion and the decision in the enalties, must stand or fall as a town official. He cannot mix his personality with his official position. He is solely the instrument of the town in seeing the law executed, when it is right and proper for him so to do. He should be above bribery or undue influence. Indeed, he is intrusted with important public duties. His first care, when complaints are made to him, should be to investigate and decide if there is reasonable proof of the alleged infringement. If he neglects or unreasonably re- fuses to prosecute, the law places it within the power of any other person to prosecute for the penalties in his name. (Section 41.) This will be disagreeable to all concerned, and the town is thereby prohibited from having its own agent attending to its business. As stated above, his personal and official duties are en- tirely separate. In one case an overseer borrowed money of the defendant ; he afterward brought an action against him for a penalty, for selling liquor without a license. The de- fendant set up the borrowed money as a counterclaim. The 104 EXCISE AND HOTEL LAWS. court held this to be improper. (Denniston v. Trimmer, 27 Hun, 393.) The statute does not authorize an overseer, as such, to borrow money, and if he does so it is as a private individual and not as a town official. (Id.) When Brought by Other Persons. — Section 41 confers the right upon others than overseers to bring the action for pen- alties, where complaint and reasonable proof of a violation of some provision of the excise law, has been made and pre- sented the overseer, and he has neglected or refused to prosecute for the penalty. Care should be exercised in every case of that kind, other- wise the person may become liable to pay the costs of the prosecution. If he brings the action without a full compli- ance with the preliminaries laid down to entitle the action to be so commenced, he will be personally liable for costs. (Jobbit v. Giles, 22 Hun, 274.) A difficulty may arise, however, when he has complied with the statutory requirements. After the action has been regularly brought, the defendant may make a motion to compel security for costs, under section 3271 of the Code of Civil Procedure, and it is within the discretion of the court whether to order it or not. The contrary rule was held in Board of Commissioners of Excise v. McGrath (27 Hun, 425); but in Sharp v. Fancher (29 id., 193), the case in 27 Hun was held not to be binding, as that question was not necessary to the decision of the case then before the court. (See, also, Board of Commissioners v. Cassiater, 62 How., 113.) This question has not yet been decided by the Court of Appeals, and until it is the case of Sharp v. Fancher (supra) must be accepted as binding. The complaint to the overseer should be so definite, and should be accompanied with such proof, as to satisfy the overseer that a penalty has been incurred, or to enable him to investigate and decide whether or not there has been a violation of the statute. (Jobbit v. Giles, 22 Hun, 274.) In this case there was a complaint j)resented under oath, on in- formation and belief, but making only general charges of sales of all sorts of liquors, naming kind, and in each of five months of the year, but specifying no person to whom any sale or any amount had been sold. The court held such a EXCISE AND HOTEL LAWS. 105 complaint and such proof insufficient, and the party com- mencing the action was charged with the costs. (See, also. Barlow v. Pease, 5 Hun, 564; Sutter ex rel. Reeve v. Fauble, 25 id., 195; Hess v. Appell, 62 How., 313.) Where, however, the action has been once properly brought, the overseer cannot discontinue the action with- out the parties consent. (Record v. Messenger, 8 Hun, 283.) Should any other person commence the action in the name of the overseer, without having made the proper com- plaint and furnished the "satisfactory" proof, the overseer may move to discontinue the action. (Hess v. Appell, 62 How., 313.) As to what is necessary to enable some other person to bring the action in the name of the overseer, see Hess v. Appell (62 How., 313), Board of Commissioners v. Purdy (36 Barb., 266), Thayer v. Lewis (4 Den., 270), Job- lit v. Giles (22 Hun, 274), Barlow v. Pease (5 id., 564). How Brought and Maintained. — In bringing an action for a penalty, where the summons is served without the complaint, there must be indorsed upon the copy of the summons served a reference to the statute giving the penalty in substance, as follows : ' ' This action is brought in ac- cordance with the provisions of [here insert the section, chapter and year of passage of the act under which the action is brought, as stated at the bottom of the statute sections of this worJc\ (Section 1897, Code of Civil Pro- cedure.) If the complaint is served with the summons, no endorse- ment referring to the statute is necessary. (Thayer v. Lewis, 4 Denio, 269.) The action maybe entitled as fol- lows : John Doe, as overseer of the poor, etc., against Rich- ard Roe. (Hait v. Benson, 18 How., 303.) It seems the action may also be entitled: "The Overseer of the Poor, etc., against Richard Roe," without naming the overseer by name, but this is not recommended. The overseers have, like commissioners of excise, reasona- ble discretion in many instances, and where judgment or discretion is allowed by law to be exercised, a mandamus will not lie to compel the officer to act. (People v. Fair- child, 67 N. Y., 334 ; Perry v. Tynen, 22 Barb., 137.) Yet when it is necessary to compel the officer to do his duty 106 EXCISE AXD HOTEL LAWS. that is plainly pointed out, a mandamus is the proper remedy. {People ex rel. Hammond v. Leonard, 74 N. Y., 445.) An overseer cannot be compelled to continue an action for a penalty where he is satisfied that his action is not main- tainable. (Id.) It may be urged that all actions for penalties should, under section 1962 of the Code of Civil Procedure, be brought by the district attorney or the attorney-general, but the answer to that is, that the ' ' poor of the county or town are not the people;'' therefore the penalties to be prosecuted for by the overseers, and which are for the benefit of the poor, are not £ ' penalties incurred to the peo- ple of the State, or to an officer, for their use," as stated in section 1962. The attorney-general, in an action brought by him, represents the whole people and a public interest, and not mere individual rights. {People v. Brooklyn, F. and C. I. JR. Co., 89 N. Y., 76, 93.) Power is conferred upon overseers of the poor to bring actions for penalties, although the cause of action accrued before the commencement of their term of office. (Section 1926, Code of Civil Procedure.) In prosecutions for a penalty, the plaintiff need not prove disqualification of defendant, such as that he sold without a license. The onus is upon the defendant. It must be alleged, but need not be proved. It is a fact peculiarly w T ithin defendant's knowledge, and, therefore, the burden of proof is upon him to show that he had a license. {Pot- ter v. Deyo, 19 Wend., 361; Harris v. White, 81 N. Y., 548; Fleming v. People, 27 id., 329.) It has been held in certain cases that only one penalty could be collected for an offense described in any one statute. Such was the decision in the case of Washburn v. Mclnroy (7 John., 134), under the excise law, as contained in the first revised laws, page 176, section 7. This statute did not, however, contain the same phraseology as our pres- ent excise laws. The term there used was, " Shall forfeit twenty-five dollars," while the corresponding section now adds, "For each offense." Under another statute giving a penalty, the court held {Fisher v. N. Y. C. and H. JR. JR. B. Co., 46 N. Y., 659) : "But one penalty can be recovered EXCISE AND HOTEL LAWS. 107 for all offenses committed prior to the commencement of the action." But in Suydam v. Smith (52 N. Y., 388, 389), the forego- ing cases were distinguished, and it was there held in sub- stance that, where a statute gives a penalty for eacli offense, that all the different offenses proven under such a statute may be recovered in one action, notwithstanding they are of the same nature, if they are charged and proved as having been committed at different times. This may be regarded as the settled practice. Care should be taken, however, to make the charge in the complaint conform to the offense named in the particular statute under consideration, and then the proof must conform to the allegations in the com- plaint. A complaint for selling liquor without a license, will not be upheld by proof that a store-keepeer with a license sold liquor to be drank upon the premises, although had such a charge been made, and such proof furnished, the action might have been maintained. In an action to recover a penalty under section 26, for the sale of liquor to a minor under eighteen years of age, the plaintiff has the burden of showing that the defendant knew or had reason to believe that the person to whom the sale was made was under the age of eighteen years. The words of the statute apply to minors as well as apprentices. {Perry v. Edwards, 44 N. Y., 223.) This is as applicable since the amendment of section 15 of the act of 1857, as before ; the change does not effect this decision. This rule would proba- bly apply to other cases where the innkeeper is to exercise his judgment. (Id., 228.) When a statute declares both a penalty and a misde- meanor for doing any one act named, like selling liquor without a license, they are entirely independent of each other, and a conviction for the offense is no bar to an action for the penalty, and vice versa. {People v. Stevens, 13 Wend., 341; Blatchley v. JSIosier, 15 id., 215.) The action for penalties against hotel, saloon and store- keepers, are generally caused by some citizen, or class of citizens, who are adverse to a free and untrammeled traffic in intoxicating liquors, and the proof in support of the alleged 108 EXCISE AND HOTEL LAWS. violations are furnished by informers or evidence prepared for the purpose of conviction, and in such cases the licensee claims frequently that the informer and plaintiff are parti - ceps criminis with the offender, and that the action ought not to be maintained. In the case of Tlie Board of Commissioners of Excise of Onondaga County v. Backus (29 How., 33), the court in- dulges in some facetious remarks upon that subject, and others arising in the case. The informer called for gin, and got what he thought was whiskey, and paid for it. The de- fendant claimed there was no proof of the offense charged. The court held that although the witness might not be cor- rect in what he thought the liquor was that it was near enough to the fact. That as the witness called for gin, and the liquor was furnished in pursuance of the call, the de- fendant cannot deny that it was gin, although it might have been whiskey. That the defendant having christened it and sold it as gin that he cannot repudiate his own offspring, when its legitimacy is called in question, and so gin it must remain. The court also held that the plaintiffs were not, even on the assumption that the witness was an informer and bought the gin under the plaintiffs direction, particeps criminis and pari delicto so as to prohibit a recovery. One having a license to sell lager beer cannot sell and deliver the same outside of his own town and in a town where no licenses are granted. A licensed brewer in Glens Falls, through an agent, took and filled orders for the sale of bottled lager beer. The agent received an order from Corinth, a town where there were no licenses granted, for a case of such beer. The Glens Falls dealer filled the order by delivering the beer at Corinth, where the agent was paid by the purchaser. This was held to be a sale at Corinth, and the agent, who was the defendant, could not justify under the license of his principal, but was held liable for selling beer in Corinth without a license. This was a criminal prosecution, but the principle would be the same in an action for a penalty. {People v. Capen, 26 Hun, 377.) A husband is liable for a penalty for his wife selling liquor without a license. (Hasbrouck v. Weaver, 10 John., 247; Board of Commissioners v. Keller, 20 How., 280; EXCISE AND HOTEL LAWS. 109 Scliaus v. Putscher, 25 id., 463; Horton v. Payne, 27 id., 374; Commissioners of Excise v. Dougherty, 55 Barb., 332; Smith v. Reynolds, 8 Hun, 128.) An agent is personally liable for his own wrongful acts, and he cannot relieve himself by claiming that he acted as agent. An agent selling on Sunday, or where he or his principal has no license, is liable for the sale. {Board of Commissioners of Excise v. Dougherty, 55 Barb., 332.) As to well known beverages, such as whiskey, brandy, gin, wine and strong beer, the courts, without proof, acting upon their own knowledge, derived from observation, will take notice that they are all intoxicating, and require no proof of the fact. {Ran v. The People, 63 N. Y., 279.) It is not necessary to constitute an olfense for selling liquor without a license that the wine should be intoxicating. {Schwab v. People, 4 Hun, 520.) SECTION Y. Actions ox Bonds. The statutes, sections 18 and 23, provide for the taking of bonds from innkeepers and store-keepers procuring licenses, and section 45 adds vendors of ale and beer to the above. The penalties and conditions of said bonds are stated in the above sections. It is made the duty of several different officers to attend to the breach of the conditions of such bonds. (Section 35.) They cannot sue in their own names alone, but the action should be brought as follows: "The People of the State of ~New York, on the relation of John Doe, Supervisor of the town of Knox, against Richard Roe." Or it may be brought in the name of the people only, and as this has been recognized by the general term as a correct way it may be well to follow the precedent. {People v. Groat, 22 Hun, 164.) The above was an action upon a bond for keeping a gam- ing table, to wit : a billiard table, by a hotel keeper, which has been declared to be a breach of the condition of the bond. It was there held that the bond might be recovered upon, although it had no seal. The overseers of the poor cannot bring an action on a hotel or store-keeper's bond. 110 EXCISE AND HOTEL LAWS. Previous to the Code of Civil Procedure this action could have been brought by any attorney employed by either of the parties mentioned in section 35; but by section 1962 of the Code of Civil Procedure a penalty incurred to the people of the State, or to an officer for their use, pursuant to a pro- vision of law, the attorney-general or the district attorney of the county in which the action is triable must bring the action to recover the penalty. There is no provision in section 35, however, declaring to whom the penalty recovered upon a forfeited bond shall be paid, while section 1963 of the Code of Civil Procedure declares that where the recovery is not otherwise specially granted or appropriated by law, it must, when collected, be paid into the treasury of the State. If to the people of the State, or to any officer for their use, then the district attor- ney or the attorney-general should bring the action ; but if the penalty is to be paid over for the use of the poor of the town or county — as are the other penalties under the excise law — or to the parties bringing the action and recovering the penalty (section 35), then it is not to the people of the State or to an officer for their use, when the action may be brought and conducted as before the Code of Civil Procedure. The case of The People v. Groat (22 Hun, 164), was held to be properly brought, but the court in that case did not expressly declare who should receive the money when re- covered. The court there declared that there are no cestuis que trusts for whom the people can be said to hold such a bond. It is, therefore, until the Court of Appeals shall pass upon this question, uncertain what course to direct, other than to apply to the attorney-general for permission to bring such an action, and get the force of his opinion in that manner before venturing upon an untried held. In this, as in all actions for penalties, if the complaint is not served with the summons, a general reference to the statute must be indorsed upon the copy of the summons delivered to the defendant, as follows : "According to the provisions, etc." (See section 1897, Code Civil Procedure.) As to what is a disorderly house, see Gardner v. Bain (5 Lans., 256.) The bond is broken when the hotel proprietor keeps a EXCISE AND HOTEL LAWS. Ill billiard table for use in his inn, when the rule is, that the winning party in the game is to pay the proprietor for the use of the table. The same rule would apply where the landlord keeps dice for his customers to throw for drinks or cigars, the loser to pay for both. There can be no difference in the rule. (See notes at end of People v. Ser- geant, 8 Cow., 141.) The extreme rigor of the rule will be found enforced in People v. Cutler (28 Hun, 465). " The defendant kept a public saloon to which persons resorted for the purpose of playing pool and bagatelle. In some cases the losers were, by the terms of the game, to pay for the use of the apparatus, and in others for the drinks. Held, that the house was a public nuisance at com- mon law, and that persons who resorted to it were gamesters within the meaning of subdivisions 4 and 7 of section 899 of the Code of Criminal Procedure. (Id.; also, see Tanner v. Trustees of Albion, 5 Hill, 121.) The playing of games for beer or cigars is gambling within the meaning of chapter 504 of the Laws of 1851. (HitcMns v. People, 39 1ST. Y., 454.) It is sufficient, to establish guilt, to prove that the defendant, occasionally, knowingly per- mitted gambling in his office. It is not necessary to prove that he habitually did so. (Id.) The substance of the act of 1851 has been re-enacted in the Penal Code, sections 343 and 344, so that any of the usual methods adopted in many hotels to decide who shall pay for drinks, cigars or games, which go to the proprietor, are gambling, and break the conditions of the bond. The Code of Criminal Procedure defines who are disor- derly persons, and subdivisions 4, 7 and 8 of section 899, are specially applicable in this connection. Subdivision 4 reads : ' ' Keepers of bawdy houses, or houses for the re- sort of prostitutes, drunkards, tipplers, gamesters, habitual criminals or other disorderly persons." Subdivision 7. ''Persons who keep, in a public highway or place, an appa- ratus or device for the purpose of gaming, or who go about exhibiting tricks or gaming therewith." Subdivision 8. "Persons who play, in a public highway or place, with cards, dice or other apparatus or device for gaming," are disorderly persons. 112 EXCISE AND HOTEL LAWS. The statute in relation to a hotel bond, in the light of these provisions and authorities, will be easily understood. To harbor disorderly persons, is allowing the hotel to be disorderly. It will, therefore, be seen that many of the lower order of hotels are disorderly within the meaning of the statute, and all that is required to compel a proper com- pliance with the terms of the bond in such cases, is a dili- gent effort on the part of the better class of hotel keepers, as well as the officers of the town, whose duty it is to prose- cute the bond. Yet, with all the power of the State to assist, without a public sentiment to go hand in hand with the law, it will be useless to undertake the task. If such bonds fall within section 1962 of the Code, as has been intimated, then whenever the local authorities, to whom is given the power to prosecute, shall be presented with proper proof, or become otherwise satisfied that a breach of such bond has taken place, it will be their duty to pre- sent such proof to the district attorney of the county, or the attorney-general of the State, and request him to prose- cute the bond and recover the penalty, and it will be the duty of such officer to commence the prosecution. In prac- tice, the attorney of the local authorities will be allowed to conduct the prosecution, using the name of the district at- torney or the attorney-general as attorney, and in no other way will they be connected with the case after it is once commenced. It is no defense to an action on a bond that it is not under seal. {Peoples. Groat, 22 Hun, 164.) SECTIOX VL Indictments. It is seldom since the enactment of section 56 of the Code of Criminal Procedure, that an indictment will be had for any offense under the excise law of this State. The only method of doing so is by section 57 of that Code. This is a proceeding to be taken only by the accused, he being under the necessity of procuring a certificate from the county judge, or a justice of the supreme court, that it is reasonable that the charge against him be presented by in- EXCISE AND HOTEL LAWS. 113 dictment, etc. It is not a privilege, on his part, to be so proceeded against, but lie must convince the judge to whom he makes application, that it is proper to have his case take a different course than that provided for such offenser gen- erally. But as it is possible that some case may be so tried, a few authorities on the subject of indictments may be necessary. Defects in form are to be disregarded which do not preju- dice the substantial rights of the defendant upon the merits. (Section 285, Code Criminal Procedure.) As to the practice previous to the Criminal Code, see People v. Adams (17 Wend., 475). An indictment for selling without a license will not be upheld by proof that a store keeper sold liquor to be drank on the premises. {Huff stater v. People, 5 Hun, 23; People v. Buffium, 27 id., 216.) The exact crime should be charged. In above cases the allegations should have been that defendant sold by measure, to be drank on the premises, which is made an offense dis- tinct from that of selling without a license. An indictment is sufficient in form if it contain the title to the action, specifying the court to which the indictment is presented, and the names of the parties, and a plain con- cise statement of the act constituting the crime without unnecessary repetition. (Section 275, Code Criminal Pro- cedure.) A servant is protected by his master's license to the same extent as his master would be. {People v. Buffum, 27 Hun, 216.) Defendant was indicted for selling without a license ; he was the agent of a licensee under a store-keeper's license, and sold to be drank on the premises. Held, not guilty. One Ross was convicted for selling liquor to a minor under fourteen years, under section 26. "The minor, a boy ten years old, testified that he was sent to purchase the liquor by an adult, one' Martin, who lived in the house with him, and who furnished the money to buy it ; that he brought the liquor to Martin without tasting it ; that sub- sequently Martin gave him a drink, by reason of which he became intoxicated. Held, that the conviction was proper, and that the fact that the boy was acting as agent for an 8 114 EXCISE AND HOTEL LAWS. undisclosed principal did not release Ross from the penalty- imposed by statute." {Ross v. People, 17 Hun, 591.) The omission in an indictment, for selling liquor at retail to be drank on the premises without having an innkeeper's license, to refer to the exception in the act of 1809, will not render it void. If the accused can bring himself within the exception he should do so by proof. {Jefferson v. People, 15 N. Y. Weekly Dig., 542.) In an indictment for selling liquor without a license, it is sufficient to allege that the liquor was sold in the Ninth ward, without stating the street or number. {Schwab v. People, 4 Hun, 520.) An indictment for selling liquor charged that it was sold on Sunday, the thirteenth day of October ; the proof was not Sunday, but Monday ; the variance was held imma- terial. {People v. Ball, 42 Barb., 324.) It is no defense to an indictment that a penalty has been sued for and re- covered for the same offense. {People v. Stevens, 13 Wend., 341; Blatchley v. Moser, 15 id., 215.) SECTION VII. Ale and Beer. It was for several years a vexed question whether ale and strong beer were "strong and spirituous liquors." At last the matter came before the senate of the State as a court of errors, and the subject received an exhaustive review by Chancellor Walworth, and were it his only decision it would have marked him as a man of great ability and much erudi- tion. The action was brought in justice court for selling liquor without a license, and the question came squarely before the court as to whether ale, porter and strong beer were within the statute. The law provided then, as now, against selling 6 ' strong or spirituous liquors or wines ' ' without a license. The chancellor reviewed the whole his- tory of "stroog drink," as mentioned in the Scripture, as well as the products of the still, tracing it back to the earliest times, and says the act of making it was ascribed to Osiris, the god of the early Egyptians, corresponding to the Bac- chus of the Romans. Indeed, as a matter of quaint and ancient lore, it will be interesting reading to all. He finally EXCISE AND HOTEL LAWS. 115 came to the conclusion that if the human stomach could contain enough of the mixture called ale and strong beer to intoxicate it was within the statute, and they were included in the terms "strong and spirituous liquors." But as there were other liquids, sometimes called strong or fermented beer, not within the statute, that an admission by defendant that he had sold strong or fermented beer did not prove him guilty of an offense. (JVevin v. Ladue, 3 Den., 437.) This doctrine has been followed and adhered to since the act of 1857. (Board of Commissioners of Excise v. Freeoff, 17 How., 442; Excise Commissioners v. Taylor, 19 id., 259.) In the latter case the court remarked, "Now that ale, strong beer, porter and most of the fermented drinks known in this country, and which are sold at public houses and groceries by the drink, can and do produce intoxication to a greater or less extent, and that such is the ordinary effect of their use as a beverage no man of mature years, who is not strangely oblivious to surrounding and passing events, can have failed to observe. (Id., 265.) The Court of Ap- peals following the same line of argument held any liquor is within the statute, whether fermented or distilled, of which the human stomach can contain enough to produce intoxi- cation. {Board of Commissioners of Excise v. Taylor, 21 N. Y., 173.) In 63 New York the question again arose, and the court held that if it was shown that the defendant sold lager beer, and evidence was given tending to show that lager beer was intoxicating, and the jury believed it, they should convict. {Ran v. People, 63 X. Y., 277.) And as to lager beer it has been held to be a question of fact generally. (Taylor v. People, 6 Park. Cr., 355; In the Matter of the People v. Hart, 24 How., 289; 3 Park Cr., 174.) Judge Earl remarked, in the case of Ran v. People, that the courts have not been willing to take notice that lager beer was intoxicating, but have submitted the question when controverted to the jury. (See, also, Dillman v. People, 4 N. Y. Week. Big., 251.) The method of submitting the question to the jury was dis- cussed in the case of The People v. Schewe (29 Hun, 122). 116 EXCISE AND HOTEL LAWS. SECTION VIII. Constitutionality of Excise Laws. The legislature of the State has the constitutional right to regulate and control the traffic in intoxicating liquors. Licenses are permits, not property. Regulations to prevent abuse violate no constitutional restrictions. {Met. Board of Excise v. Barrie, 34 N. Y., 657; People v. Quant, 12 How., 83; Bertholf v. O Reiley, 74 K Y., 509; People ex rel. Pressmeyer v. Commissioners of Police, 59 id., 92.) It is not unconstitutional for villages to submit the ques- tion of license or no license to the electors ; nor for the legislature to pass ennabling acts. ( Village of Glover smile v. Howell, 70 N. Y., 287.) Section 23, wherein it declares that whenever any person is seen to drink in such shop or house, out-house, yard or garden belonging thereto any spirituous liquors, etc., that it shall be prima facie evidence that such spirituous liquors or wines were sold by the occupant of such premises, or his agent, with the intent that the same should be drank therein, is unconstitutional, as depriving the accused of his rights to a trial by jury. {People v. Lyon, 27 Hun, 180, citing Bert- holf v. 0' Reiley, 74 1ST. Y., 509; Hand v. Ballon, 12 id., 543; Wynehamer v. People, 13 id., 444.) SECTION IX. Intoxication. The question frequently arises, under the excise law, whether a person is intoxicated or not. Innkeepers and others are liable to a penalty for selling to all intoxicated persons, and it is made an offense to be intoxicated in a public place, so it is a nice distinction which officers, magis- trates and innkeepers are directed to draw. What a physi- cian might, and many times does, fail in knowing, persons who sell or give away liquor are bound to know under a penalty. The same nice distinction must be exercised in the obedience of other sections of the excise law — such as who are habitual drunkards ? In the case of McGinley v. IT. S. Life Ins. Co. (8 Daly, 394), this question is reviewed. It is there stated, "The EXCISE AND HOTEL LAWS. 117 principles involved in the question as to whether the habits of life of a person are temperate or not, are questions of extreme delicacy and oftentimes of great importance. It, perhaps, cannot be claimed that the mere use of alcoholic stimulants constitutes intemperance ; nor is there any fixed rule or standard of such general application that we can plainly discern where temperance ends and inebriety begins. Necessarily then each case of this character must be deter- mined upon its own particular facts. Slight indulgence may produce drunkenness in A., while repeated indulgences fail to effect B. It would thus appear that the test between sobriety and inebriety is the effect produced on each indi- vidual by the use of alcoholic liquors. It is a question for a jury. ' ' It is a question for a jury in an action for an injury by falling through a sidewalk whether the intoxication con- tributed to the injury. (Healy v. Mayor of New York, 3 Hun, 708.) An habitual drunkard is not incompetent to execute a deed ; he is simply incompetent, upon proof that, at the time, his understanding was clouded, or his reason dethroned by actual intoxication, or upon proof of general unsound- ness of mind. ( Van WycJc v. Brasher et ah, 81 X. Y., 260.) Its Effect in Crime. — In the case of the People v. Oava- naugli (62 How., 195), Mr. Justice Osborn charged the jury as follows : ''Intoxication is no defense to a crime. If the prisoner, when he committed the act, was in such a state of mind as not to know the character of the act he was doing, or not to know the difference between right and wrong, then he would not be responsible for his act." In the case of People v. (J Connelh 62 How., 436, it was held, " drunkenness in itself, simple drunkenness, whether it is of limited measure or whether it is an exception, does not constitute insanity, and does not excuse a person com- mitting an act from the responsibility of the acr, bur if a person committing an act or doing an injury is in a state of ' ' delirium trernems" at the time, and is therefore rendered unable to determine the nature or the quality of the act, or its right or its wrong, then he is relieved from the re- sponsibility. 118 EXCISE AND HOTEL LAWS. Drunkenness, although carried to the extent that it over- comes the will, and incapacitates from controlling the action of the mind, is no excuse for a crime ; and voluntary intoxi- cation, although amounting to a frenzy, does not exempt one who commits a homicide without provocation, froni the same construction of his conduct, and the same legal infer- ences upon the question of intent, as affecting the grade of his crime, which are applicable to a person entirely sober. [Flanigan v. People, S6 X. Y.. 554.) SECTION X. Hotels and their Keepers. Hotels, inns and taverns are synonymous terms. {People v. Jones. 54 Barb.. 311: Overseers of the Poor of Crown Point v. Warner, 3 Hill, 150.) As to what is an inn, tavern or hotel, see chapter 5 of this work. As to what a licensed hotel keeper should keep to comply with the excise law, see section 19. chapter 1. A hotel keeper cannot assign his license so as to allow any other person to keep hotel and sell liquors in his place and stead. A sale and delivery of his hotel, or an assignment of his lease, would terminate his rights under his license. The subject of his liability under the "civil damage law" is pointed out in another part of this work. There is. however, another statute which may entail lia- bility upon hotel keepers as such. By chapter 5S3 of the Laws of 1S73. it is enacted, in substance, that whenever the lessee or occupant or other owner of any building or premises shall use or occupy the same, or any part thereof, for any illegal trade, manufacture or other business, the lease, etc.. shall become void, and the landlord may re-enter, etc.. in the same manner as a tenant holding over after the expiration of his lease. By the second section of said act. any owner or lessee allowing his premises to be used for such illegal trade, etc.. becomes jointly and severally liable with the tenants for any damage resulting from such illegal occupancy. Under this statute selling liquor without a license is an illegal trade or traffic, and the owner or lessor, who has EXCISE AND HOTEL LAWS. 119 rented his property for legitimate purposes, may remove his tenant or lessee summarily, for such use, and where the property has been snb let and the snb tenant uses the prop- erty in that manner, the landlord may proceed directly against the sub lessee. (People ex rel. Jap v. Bennett. 14 Hun. 03.) He who knowingly assists a wife in the violation of her duty, is guilty of a wrong for which an action will lie. This was held to be so. where a druggist had secretly sold laudanum to the wife of plaintiff until it greatly injured her. It was also held, that the sale of liquor under like circumstances to a wife, by which the husband suffers loss, would make the vendor liable. {Hoard v. Peck, 56 Barb.. 205.) SECTION XL Practice. A summons issued upon a suit for a penalty, should have indorsed upon it a reference to the statute under which the action is brought, but a substantial compliance will answer. A summons was issued, and indorsed, "issued according to the proceedings of title 9. chapter 20, part first of the He- vised Statutes," and it was held a sufficient compliance with the statute. {Andri ws v. Harrington, 10 Barb.. 343: Perry v. Tynan, 22 Barb.. 137.) If the complaint is served with the summons no such indorsement is required. The decision of a board of excise on examination under section 40, is not reviewable on certiorari, when the pro- ceedings have all been legal. (People ex ret. FunJie v. Board of Excise, 24 Hun, 105. See, however. People ex rel.. etc., v. Supervisors, 51 X. Y.. 442.) As to what is a sufficient complaint in justice court for a penalty under the excise law. see Hall v. McKechnie (22 Barb., 244). Liberality in pleadings and proceedings, where no substan- tial right is jeopardized or destroyed, prevail the same in excise proceedings as in other practice. Even in criminal actions, it is unnecessary to prove the precise day of the offense, and in entering up the conviction it is proper to in- 120 EXCISE AND HOTEL LAWS. sert the day charged in the complaint, although no day was proven. {Tiffany v. Driggs, 13 John., 253.) In bringing actions for penalties for violations, the pro- ceedings are the same as in all civil actions, except the in- dorsement npon the summons. The complaint need be in no particular form, except it must comply with section 2936 of the Code of Civil Procedure. It must state in a plain and direct manner the facts constituting the cause of action. The answer may contain a general denial of each allega- tion of the complaint, or a specific denial of one or more of the material allegations thereof. It may also set forth, in a plain and direct manner, new matter constituting one or more defenses. (Section 2938, Code Civil Procedure.) Actions for penalties being of a quasi criminal nature, and not arising out of contract express or implied, any judgment obtained for a penalty or for costs, will entitle the prevailing party to an execution against the body in like manner as for frauds, torts or wrongs, and the defendant will not be en- titled to jail liberties. (Section 43, chapter 1; People ex rel. Brown v. Van Hoesen, 62 How., 76.) Under section 28, an officer seeing an offense committed is directed to arrest the offender, without a warrant. If he neglect for ever so short a time by going away and returning he cannot arrest without a warrant. The shortness of time does not affect the merits, and for such an arrest without a warrant the officer is liable for false imprisonment. {Myers v. Clark, 41 N. Y. Sup'r Ct. Rep., 107.) SECTION XII. Miscellaneous Provisions. There are various other questions that have relation to the excise laws that have been before the courts of this State. Many of the decisions not hereinbefore cited relate specially to cities, city ordinances or charters, construction of statutes, etc. Some of them will be cited at the close of this section ; but particular subjects upon which they treat will not be given except in a general way. An ordinance passed by a municipal corporation prohibit- ing the sale of spirituous liquors on Sunday, is void, as pro- EXCISE AND HOTEL LAWS. 1*21 hibiting innkeepers from selling liquors to their lodgers and lawful travelers pursuant to their licenses. ( Wood v. City of Brooklyn. 14 Barb., 425.) Such ordinances maybe en- forced when they do not conflict with general laws. [City of Cohoes v. Moran, 25 How., 385.) A municipal government may pass ordinances imposing new and superadded penalties. Every sale necessitates an offer of the goods sold, and one single act of selling cannot be divided into two offenses. {City of Brooklyn v. Toynbee, 31 Barb., 282.) City and village charters may provide for submitting the question of license or no license to the people of the district, and where their charter is adopted after the law of 1857. and it contains a provision that actions for penalties shall be brought in the corporate name, the case is taken out of the general law and is not affected by the amendment of 1873, vesting the power to prosecute in the overseers of the poor. X"or is it disturbed by chapter 444 of the Laws of 1874. ( Village of Gloversville v. Hoicell. 70 X. Y., 287.) The pro- visions in the charter and the right to submit to vote were held to be constitutional. The act of 1874 abolished boards of commissioners of excise in villages. (Id., 293.) The same rule was held in substance in the case of People ex reL Stiner v. Morrison (78 X. Y., 84). The provisions of the charter of the village of Deposit, which provides for the payment of all sums received for licenses into the treasury of the village, is not repealed by chapter 444 of the Laws of 1874 creating boards of excise for the several counties of the State. ( Village of Deposit v. Devereux, 8 Hun, 317.) For effect of general upon special statutes, see People ex rel. Stiner v. Morrison (78 X". Y., 84), Smith v. People (47 id., 330). People v. Gates (56 id., 387), Village of Deposit v. Di vereux (S Hun, 317). As to the repeal of special statutes, see The P tuple v. Quigg (59 X". Y., S3), Matter of Commissioners of Central Park (50 id., 493). The courts should be astute to find out some meaning to every statute, and if an intent can be spelled out fairly from the words effect should be given to that intent, though not 122 EXCISE AND HOTEL LAWS. artistically expressed. (Matter of Commissioner of Wash- ington Parte, Albany, 52 N. Y., 131.) Tlie attorney-general has written opinions upon various questions presented to Mm by inquiries, and although not binding upon the courts they may throw some additional light upon the questions that have or may hereafter arise. They are referred to according to number and may be ex- amined by the student or any party interested. It is not thought best to more than refer to them here. Number 418, 427, 452, 456, 457, 458, 460, 461, 465, 469, 503, 514, 527, 537, 553, 568. Decisions having special application to cities and villages : 18 N. Y., 38; 28 id., 605; 78 id., 84; 8 Hun, 317; 21 How., 117; 31 Barb., 142; 23 1ST. Y., 439; 63 id., 623; 7 Hun, 345; 11 id., 289; 23 id., 66; 6 Lans., 251; 1 Keyes, 454; 26 N. Y., 467; 70 id., 287; 5 Hun, 310; 21 id., 244; 25 How., 385; 23 Wend., 459; 2 Keyes, 132. EXCISE AND HOTEL LAWS. 123 CHAPTER IV. TRE CIVIL DAMAGE ACT. SECTION I. General Provisions of the Statute. The legislature, by chapter 646 of the Laws of 1873, passed what is known and called "the civil damage act' 5 (ante, chapter 1, sections 69 and 70), and which has been decided to be a part of the excise laws of the State. (FranJclin v. Schermerhorn, 8 Hun, 112; Baker v. Pope, 2 id., 556.) By the said act every husband, child, parent, guardian, em- ployer or other person, who shall be injured in person or property, or means of support, by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, shall have a right of action against the per- son selling the liquor producing the intoxication, in whole or in part, or against the owner of the premises renting the same or having knowledge that intoxicating liquors are to be sold therein, for the damages sustained, and also for exemp- lary damages, and the action may be joint or several against the seller and the owner of the premises. Previous Statutes. — The only provisions previous to the passage of this act, by which damages might be recovered against the person selling liquor, were by section 1. 3 Re- vised Statutes (6th ed.), page 732, which gave a right of action to the person injured, or after his death by his rep- resentatives, against a wrong-doer for wrongs done to the property, rights or interests of the pers6n injured (ante, section 71) ; and by section 28, chapter 628, 1857 (ante, sec- tion 39), which contains the germ of ''the civil damage 124 EXCISE AND HOTEL LAWS. act," and by which the sale of strong or spirituous liquors to persons to whom it is declared by said act unlawful to make such sale, rendered the person selling liable to the person sustaining injuries thereby, for the damages sus- tained, the sum recovered to be for the benefit of the party injured. And under said sections it was held in the case of KiZburn v. Coe (48 How., 144), that, damages arising from injuries to property, sustained by an habitual drunkard, may be recovered under the excise law against any person unlawfully making the sale of the liquor, by the means of which the injuries arose. Such injury to the habitual drunk- ard being against his property or estate, as distinguished from a mere injury to his person, an action for damages may be brought, in case of his decease, in favor of the ex- ecutors or administrators of his estate. The justice writing the opinion in the above case, states, in substance, that the purchaser, in consequence of the sale r is injured by the unlawful sale to the amount of the price paid, and may maintain an action for the same, and that ' ' the legislature certainly designed to go so far by the en- anctment of the section (section 39, ante) as to apply that to the case of a person unlawfully obtaining another's money, by the sale of strong or spirituous liquors." Section 19 of the act of 1857 (a?ite, section 30), also gives a penalty of fifty dollars after notice in certain cases, but it will be observed that this is a penalty, and not for damages resulting from the sale of intoxicating liquors. Cases might arise where an action could not be maintained under the " civil damage act," when it might be important to rely upon the foregoing statutes. SECTION II. A New Cause of Action Created. By the enactment of the "civil damage act," a new cause of action was created, and both direct or consequential in- juries are included in the remedy given. ( Yolens v. Owen et al., 74 EL Y., 526.) The words " means of support," in connection with the designation of the persons in whose favor the remedy is given, viz., husband, wife, child, parent, etc., denote that it was not alone a common-law injury, or EXCISE AND HOTEL LAWS. 125 an injury before remediable by action, to which the statute was intended to apply. (Id.) It will be noticed that some person must be "injured in person or property or means of support ' ' to give a cause of action, and it is not necessary that the person injured be the husband, wife, child, etc., of the person doing the injury, but if the injury is done by any intoxicated person, or in consequence of the intoxication of any person, the persons named shall have the right of action for the same, and such action may be not only against the person selling, who is very often unable to respond in damages, but against the owner of the premises renting or permitting them to be used for the sale of intoxicating liquors, or against them jointly; and, as heretofore shown, the term, "intoxicating liquors," as used in the statute, means "strong or spiritu- ous liquors;" therefore the act applies to the sale of all liquors that are intoxicating, and must include ale, wine and beer, as they are held to be intoxicating. This is a just and equitable statute, and the persons in- tended to benefited, are those most liable to need the assist- ance for which it provides. It will also be seen by reference to the statute, that the unlawful sale or giving away of intoxicating liquors, works a forfeiture of the rights of the tenant or lessee under his lease. SECTION III. Jurisdiction of Justices of the Peace. By the second section of the "civil damage act," any justice of the peace of the county where the offense is com- mitted, has jurisdiction of the action, where the claim does not exceed 8200, and by associating with himself two other justices of the county, has jurisdiction to the amount of 8500, as the damages sustained under the statute would, in a great majority of cases, be under the sum of 8500, this section provides for an expeditious and comparatively inex- pensive trial, in case the party bringing the action should choose to bring it in a justice' s court. 126 EXCISE AND HOTEL LAWS. SECTION IY. Constitutionality of the Act. The act of 1873, known as " the civil damage act," was constitutional and valid. (BertTiolf v. O'Reiley, 74 X. Y., 509; Met. Board of Excise v. Berrie, 34 id., 657; Baker v. Pope, 2 Hun, 556; S. C, 5 T. & C, 102; Hayes v. Phelan, 4 Hun, 733; Dubois v. Miller, 5 id., 332; Jackson v. Brook- ins, id., 530; Franklins. Schermerltorn, 8 id., 112; SmitJi v. Reynolds, id., 128; 3feadv. Stratton, id., 148.) The legislature has power to create a cause of action for damages in favor of a person injured in person or property by the act of an intoxicated person against the owner of real property, whose only connection with the injury is that he leased the premises where the liquor causing the intoxica- tion was sold or given away, with knowledge that intoxicat- ing liquors were to be sold thereon. {Bertholf y. CP Reiley, supra.) The court in the opinion say, " That the act is doubtless an extreme exercise of legislative power ; but we cannot say that it violates any express or implied prohibi- tion of the constitution." The liability may be imposed irrespective of the question whether the sale or giving away of the liquor was lawful or unlawful, or of the question of negligence on the part of the landlord or tenant. (Id.) It may be well to go further upon this point, and quote from the opinion (page 513), "The liability of the landlord is not made to depend upon the nature of the act of the tenant, but exists irrespective of the fact whether the sale or giving away of the liquor was lawful or unlawful ; that is, whether it was authorized by the license law of the State, or was made in violation of that law. Xor does the liability depend upon any question of negligence of the landlord in the selection of the tenant, or of the tenant in selling the liquor. Although the person to whom liquor is sold is at the time apparently a man of sober habits and, so far as the vendor knows, one whose appetite for strong drink is habitu- ally controlled by his reason and judgment, yet if it turns out that the liquor sold causes or contributes to the intoxi- cation of the person to whom the sale or gift is made, under EXCISE AND HOTEL LAWS. V21 the influence of which he commits an injury to person or property, the seller and his landlord are by the act made jointly and severally responsible. The element of care or diligence on the part of the seller or landlord does not enter into the question of liability." SECTION Y. When Caese of Action will not Exist Undek. There are cases where the action will not lie, which would seem at first look to come fairly within the statute. In the case of March v. Mabbitt (3 Week. Dig,, 126), there was no evidence on the trial of any specific act done, or omitted by the husband, while in a state of intoxication which in any manner injured the plaintiff in person or estate, or deprived her of any means of support, and she failed to recover. In one case the complaint alleged that the death of plain- tiff s husband was caused by intoxication, caused by liquors sold to him by defendant, and that by his death plaintiff had sustained damages in being deprived of the companionship of her husband, and of the customary support and mainten- ance of herself and children. And it was held that the com- plaint did not state a cause of action under the statute. {Hayes v. Plielan, 4 Hun, 733.) And among the reasons given by the learned judge writing the opinion were, that no injury by an intoxicated person is alleged, that depriva- tion of companionship is not by the statute a ground of ac- tion, no previous loss of means of support is alleged, and says, in substance, that a right of action exists against the vendor or giver of the liquor only in cases where it lies against the intoxicated person. Judge James wrote a dissenting opinion in this case (5 Hun, 530), in which he arrives at a different result, as did the court in Qua hi v. Russell (S Hun, 319); and see Head v. Stratton (87 N. Y., 498). In the last two cases, it was held that it was not essential to the cause of action ; that a cause of action should also be maintainable against the intoxicated person ; that it was sufficient if the wife had been injured in her means of support through the intoxication of her husband. In another case the complaint alleged that the defendant 128 EXCISE AND HOTEL LAWS. sold intoxicating liquors to plaintiff's husband, intoxicating him, and rendering him incapable of labor and of supporting the plaintiff, and so injuring him as to cause his death, and that, by reason of his death, plaintiff had been injured in property and means of support to the amount of 85,000, and it was held not to state a cause of action under the "civil damage act." (Brookmire v. Monaglian, 15 Hun, 16.) The primary jmrpose of the legislature, in giving a right of action for an injury of this character, was the protection of the dependant and helpless. Diminution of income, or loss of property, does not constitute an injury to means of support, within the fair intendment of the statute, if the plaintiff, notwithstanding, has adequate means of mainten- ance from accumulated capital or property, or his remaining income is sufficient for his support. ( Volans v. Owen et al., 74 K Y., 530.) The above action was brought for loss of services of plain- tiff' s minor son and for medical and other expenses, and it was held that the plaintiff was not entitled to recover, in the absence of proof that said services were necessary to his sup- port, or that the charge brought upon him diminished his means so as to render them inadequate therefor. (Reversing same case, 9 Hun, 558.) SECTION VI. Joint Action Against Separate Vendors will not Lie. A joint action will not lie against two or more persons who, separately, at different times and at different places, have sold liquor to the same person, each quantity of liquor sold having contributed to produce the intoxication that caused the injury. {Jackson v. Brookins et al., 5 Hun, 530.) The above action was brought jointly against two separate vendors of liquor, and the landlord of one of them, charging that each sold liquor to plaintiff's husband, and to other parties on the same day, but at different places, the liquor sold by each contributing to produce the intoxication of the parties, who afterward engaged in an affray and plaintiff ' s husband was killed. The defendants each demurred, one ground of demurrer being that the defendants could not be EXCISE AND HOTEL LAWS. 129 sued jointly. The demurrer was sustained upon this point, the court holding that a cause of action was stated against the one vendor, and another stated against the other vendor and his landlord jointly ; but that a joint action would not lie against the three persons. And further, " That whether more than one action will lie in favor of plaintiff, we are not called upon to decide." It is to be regretted that the court did not give an opinion upon tins point, as many, if not a majority, of the cases that might arise under the statute are similar to this one, the persons becoming intoxicated by liquor procured at several places. Certainly, by the terms of the act, each of the parties are liable for the damages sus- tained, having sold or given away the liquor that produced the intoxication "in whole or in part," and under the last case cited the whole damages could be recovered of any one vendor, but could they each be made to respond ? It would seem that the injury having been fully satisfied by the re- covery of the damages against one of the vendors, another action brought against another vendor would be barred. In the case of Morenus v. Craioford (15 Hun, 45), the liquor producing intoxication was sold by two persons at different places ; the action was joint against them, and the complaint charged a conspiracy between the vendors. It was held that two separate sales by the defendants sever- ally, did not uphold the allegation of a joint sale by de- fendants, and the allegation of a conspiracy was treated as surplusage, but the question as to whether a separate action and recovery would lie against each was left undecided. These words, however, were used in the prevaling opinion, "possibly the plaintiff might have been allowed to elect, and to recover against one or the other of the defendants, but we need not decide that." SECTION VII. Where Several are Injured, They can Only Recover Proportionately. The statute gives the right of action to several 'persons. In case of the death of the husband and father, the wife is not the only party injured, but the children are also injured 9 130 EXCISE AND HOTEL LAWS. in their "means of support," where they are dependant upon the father ; and the same questions would arise as in the case of several parties selling the liquor producing in- toxication. In case the wife elects to sue for the damages and recovers, is an action by the children barred, or can each maintain an action for the damages sustained by each, or must they all join in one action for the whole damages % In the case of Franklin v. Scliermerhorn et al. (3 IS". Y. Week. Dig., 390; S. C, 8 Hun, 112), it was held that where several persons are dependant for support upon the person to whom the liquor was sold, by means of which the injury was sustained, in an action by one of such persons against the person who sold the liquor, the plaintiff's proportionate share only could be recovered. In the last case the intoxicated person had a wife and four children dependant upon him ; the wife brought an action recovering $175. It was held, Justice E. D. Smith writing the opinion, that as the act gives a right of action to hus- band, wife, child, etc., or other person who shall be injured, that the wife was entitled to her proportionate share only, or one-fifth of the loss. It also declares the act vague and inexplicit, and that while the legislature doubtless in- tended to give a single right of action, and single damages to one person, a right of action is given, or might arise, to a husband or wife and each of their children, be they ever so many, as well as to the other persons named in said section. If the decision in this case is correct, it would be neces- sary for each to bring a separate action, thereby making, as it would seem, much unnecessary litigation, or a joint ac- tion be brought by all ; but the right to maintain a joint action in such case would be somewhat doubtful, as each is given a cause of action, and there is not that community of interest which would allow them all to unite in one ac- tion. A guardian might be appointed for the children, and their interest assigned to the mother, when damages could all be recovered in one action, but this course would call for delay in getting the appointment of a guardian, as well as trouble and expense, which, in many instances, where the injury is slight, would deter the parties from pro- ceeding with the matter. EXCISE AND HOTEL LAWS. 131 SECTION VIII. nYhen Cause of Action Exists Under for Loss of Means of Support. Where the death of a man is a result necessarily follow- ing, and attributable to his intoxication, an action is main- tainable by his widow, if injured in her "means of support,*' against the vendor of the liquor causing the intoxication, and the owner of the building where the liquor was sold, in the cases specified in the civil damage act. {Mead v. Stratton, 87 N. Y., 493; Hill v. Berry, 75 id., 229; Qua in v. Russell, 8 Hun, 319; Jackson v. Brookins, 5 id., 530; Davis v. Standisli, 26 id., 008 ) It will be observed from a reading of the cases, as well as the statute, that the person seeking to recover must be injured in "means of support, etc." No matter how great the in- jury may be in other respects, or how much suffering may be entailed by reason of the intoxication, if the person is not injured in person or property or means of support no action will lie. Death of the husband alone does not give a cause of action. (Brookmire v. Monaglian, 15 Hun, 16.) In the case of Mead v. St rattan (supra), the court say, "If the injury which had resulted to the deceased in consequence of his intoxication had disabled him for life, or to such an extent as to incapacitate him for labor and for earning a support for his family, it would no doubt be embraced within the meaning and intent of the statute. That death ensued in consequence thereof, furnishes much stronger ground for a claim for a loss of means of support." In the case of Davis v. Stand isft, it was held that the jury in esti- mating the damages might consider the expectancy of the plaintiff and her deceased husband, based upon the North- ampton tables. And, also, that if the liquor was the proxi- mate cause of death it justified a verdict for the plaintiff. The case of a husband, having a wife and family dependent upon him for support, who by reason of intoxication becomes incapacitated to labor and neglects to provide for those so dependent, or squanders his substance, reducing them to penury and want, is within the act. ( Volans v. Owen et al. y 74 N. Y., 527.) 132 EXCISE AND HOTEL LAWS. SECTION IX. Injury to Person or Property. Injuries arising to the person or property from or by rea- son of the intoxication of another come within the statute. Where a wife is thrown out of a wagon and seriously in- jured, through the recklessness of a drunken driver, the husband is entitled to recover damages for the loss of her services, and for medical attendance on her, from the liquor dealers who sold the driver the liquor whereby he became intoxicated. (Aldrich v. JSager, 4 Week. Dig., Ill; S. C, 9 Hun, 537.) Here the injury was produced by the driver, a third person, and the husband of the person injured re- covers of the person selling the liquor to the driver. P. was the owner and F. the keeper of a place where in- toxicating liquors were sold without a license. The son of the plain tiff on a Sunday took plaintiff' s horse, saying he was going to see a friend about four miles distant, but instead went directly to the place of F. and became intoxicated there, and when in such state drove the horse so violently that he died ; and it was held that an action could be maintained against R. and F. jointly. (Bertliolf v. O'Reilly, 8 Hun, 16.) And that the father knowing his son to be of intemperate habits, was not guilty of contributory negligence in allowing him to drive the horse ; and that the sending of the horse on Sunday did not deprive the plaintiff of the right to sue for his property unlawfully destroyed. (Id.) A wife may recover damages for injuries and pain endured, against a licensed liquor dealer selling liquor to her husband, causing his intoxication, by reason of which he upsets a wagon, throwing her to the ground. (Belyea v. JVorris, 5 Week. Dig., 343; affirmed, 77 N. Y., 629.) SECTION X. Liability of Owner of the Premises. The object of the law was to prevent the impoverishment of families by reason of intoxication; to prevent the violence and injury resulting from intoxication by making those who caused the intoxication liable for the damages which resulted to others by reason thereof. The tenant may sell, but he EXCISE AND HOTEL LAWS. 133 must be careful to whom he sells, and never to sell enough to cause intoxication, or to add to an intoxication which had been commenced by sales of strong drink by others. The landlord must see that he rents his premises, if he rents them for the purpose of selling intoxicating drinks, to per- sons who will so sell that no person will be injured in person, property or means of support by reason of his sales. The legislature required the owner, who alone has the power to lease and select his tenant, to assume the risk of his tenant's acts in the business of selling spirituous liquors when such tenant caused injury by his sales. If the legislature can legislate against the tenant, its power to reach the landlord cannot be doubted in the cases mentioned in the act referred to. {Bertholfv. O'Reilly, 8 Hun, 16; S. C, 74 N. Y., 50&.) The liability of the owner may be imposed irrespective of the question whether the sale or giving away of the liquor was lawful or unlawful, or of the question of negligence on the part of the landlord or tenant, and such a legislative en- actment is not violative of the constitutional provision pro- hibiting the taking of private property without " due process of law." (74 N. Y., supra ; Met. Board of Excise v. Bar- rie, 34 N. Y., 657.) In the case oiMeadv. Stratton etal.(87N. Y., 493), the wife of the vendor of the liquors was the owner of the premises and had taken title and possession before the passage of the act. She had general charge of the house, except of the bar, and knew that intoxicating liquors were there sold, and it was held that the fact that possession was taken before the act was passed did not exempt her from liability ; that the presumption was that the possession originally taken was continued in view of the laws of the State thereafter enacted; and that the question whether she had given permission for the occupation of the building with knowledge that liquors were to be sold, was properly submitted to the jury, and that having such knowledge she was liable under the act. A joint action may be maintained against a landlord and his tenant. (Jackson v. Brookins, 5 Hun, 530; Bertholf v. p- erly, and who are able and ready to pay for their entertain- ment, are received, if there is accommodation for them, and who, without any stipulated engagement as to the duration of their stay, or as to the rate of compensation, are, while there, supplied, at a reasonable charge, with their meals, lodging, refreshments and such services and attention as are necessarily incident to the use of the house as a tem- porary home. A mere restaurant or eating-house is not an inn, nor a mere lodging-house, in which no provision is made for supplying the lodgers with meals ; and, in respect to houses for the entertainment of travelers, of which there are many, where the guest or traveler pays so much a day for his room, and takes his meals or not, as he thinks proper, in the restaurant, paying separately for each meal, as he takes it, they are to be considered inns, if the restaurant forms part of the establishment, and the whole house is kept under one general management for the reception of all guests or travelers that may come there ; it differs from a boarding- house for the reason that all who come are received, and be- cause the guest engages for no specific period, but pays for the time he is there. [Cromwell v. Stevens, 2 Daly, 15; S. C, 3 Abbott [X. S.], 26; and see Kopper v. Willis, 9 Daly, 460.) The above is an extract from the admirable opinion of Chief-Justice Daly, written in the case of Cromwell v. Stevens, and in which he gives a thorough history of inns, taverns and hotels, the reading of which would interest any student. A hotel in a city kept for the entertainment of transient guests is an inn. {Taylor v. Mbnnott, 1 Abb., 325.) A free lunch at the bar, or the occasional bringing of victuals from a neighboring restaurant, will not transform a drinking saloon into a hotel. {Matter of Kelt ey v. Excise Commis- sioners, 54 How., 332.) 144 EXCISE AND HOTEL LAWS. The keeper of a restaurant who has no beds for the accom- modation of travelers is not an innkeeper. A mere lodging house, in which no provision is made for supplying the lodgers with their meals, wants one of the essential requi- sites of an inn. A house which does not contain the means of preparing food for the table in the ordinary way has not the necessary accommodations to entertain travelers. (Id.) A proprietor of a house or hotel, on what is called the " European plan," i. e., the renting of rooms with a restau- rant for meals, is the proprietor of a hotel within the mean- ing of the act of 1855, chapter 421. (Bernstein v. Sweeney, 1 J. & S., 271.) A person who makes it his business to entertain travelers and passengers, and provide lodging and necessaries for them, their horses and attendants, is a common innkeeper. (Overseers v. Warner, 3 Hill, 157.) Hotels, inns and tav- erns are synonymous terms. [People v. Jones, 54 Barb. , 311. ) SECTION III. Rights of Innkeepers. The right to keep an inn, in the common law sense of the term, is not a franchise ; and hence, notwithstanding the excise statutes, any person may keep such a house without a license, as it is a lawful trade open to every citizen. (Overseers v. Warner, 3 Hill, 150.) Of course, it will be understood, that the right to keep a hotel does not carry with it the right to sell intoxicating liquors, unless duly licensed so to do. The rule, as laid down in 3 Hill (supra), was in force until the act of 1877, chapter 419 (ante, page 45, section 52), by which licenses to keep hotels may be granted as other licenses are granted, but without including the right to sell strong or spirituous liquors, ale, wines, beer or alcoholic drink, for which a fee of five dollars may be charged, the same bond being required as for other licenses. It is probable that this statute has changed the common law rule of the right of every citizen to keep an inn, and that now if a hotel keeper wishes to avail himself of the statutes for his protection, he must have a license as a hotel keeper. There are no decisions upon this question direct. In the EXCISE AND HOTEL LAWS. 145 case of Trimmer v. Hiscock (27 Hun, 364), the action was brought by the hotel keeper for slander. The plaintiff had no license, but the answer admitted that plaintiff was the keeper of a public inn or hotel for profit, and it was held that the defendant was concluded by his answer from claim- ing upon the trial that the action could not be maintained because the plaintiff had failed to procure a license to keep a hotel as provided by chapter 419, 1877. It would be in- ferred from above that but for the admission of the answer the plaintiff would have failed, for the reason that .he had no license to keep a hotel. The slanderous words complained of were, "He kept no accommodations, and a person could not get a decent meal or decent bed if he tried ; ' ' and it was held, as the words were spoken about the plaintiff's busi- ness, they were actionable, per se. Under section 267 of the Penal Code (ante, subdivision 16, section 1), innkeepers who sell spirituous or malt liquors, or wines, have no right to sell prepared tobacco upon the premi- ses, where he sells such liquors, on Sunday ; and prepared tobacco includes cigars. For a violation he is guilty of a misdemeanor and may be punished by a fine of from one to ten dollars, or by imprisonment not exceeding five days, or both. (Subdivision 17.) And in addition the property offered for sale shall be forfeited. (Subdivision 18.) SECTION IV. Duties of Innkeepers. Every keeper of a hotel is required by statute (ante, sub- division 6, section 1), to post a copy of chapter 677, 1867, as amended by chapter 227, 1883, in a conspicuous x>lace in the office of his hotel, and also in the public parlors ; and also a statement of charges for meals and lodging. Until the amendment of 1888, he was also required to post the same in every bed-room of his house. For a failure to comply with this provision, he is liable to a forfeiture, specified in subdivision 6, and is not entitled to receive payment for the meals furnished. He is also bound by law to afford such shelter and accom- modations as he possesses to all travelers who apply, and who tender, or are able and ready to pay, the customary 10 146 EXCISE AND HOTEL LAWS. hire or price, if they are not drunk or disorderly or laboring under contagious or infectious disease (2 Story on Contracts, 140, § 744) ; and his duties are the same, no matter what the race, color or previous condition of servitude of the appli- cant may be. For a refusal he is guilty of a misdemeanor {ante, subdivisions 13 and 15, section 1) ; and besides he is liable to an action for the recovery of any damages that may have been sustained by reason of such refusal. (1 Wait's Law and Practice, 339.) He is not bound to re- ceive the goods of a person who professes merely to make use of the inn as a place of deposit, and to lodge therein as a guest ; nor is he bound to provide his guest with the precise room which the latter may choose to select. (Id., 340.) If he keep a safe for the safe-keeping of money, etc., of his guests, to relieve himself from liability for loss he must post notices in the office and public parlors of his house, stating that such safe is provided. (Subdivision 1, sec- tion 1.) But it has been held that personal notice that a safe is provided, is equivalent to posting the notice re- quired. {Purvis v. Coleman & Stetson, 21 N. Y., 111.) He is bound to exert the greatest diligence in regard to the goods and chattels of his guests. If he desire the pro- tection given him by the law, it will be his duty to procure a license as a hotel keeper (chapter 419, 1877, ante, page 45, section 52), or procure a license under the general excise laws ; but, in the latter case, his duties and responsibilities are increased, but will not be referred to here, having been given in a previous part of this work. SECTION Y. LlEX OF IXXKEEPEKS. An innkeeper has a lien upon all the property of his guest, in the inn and its stables for all his expenses. The lien does not, however, extend to the person of his guest, or the per- sonal clothing he has on ; and it only exists while the owner of the goods, in respect of which it is claimed, is actually or constructively a guest. It does not attach upon the prop- erty of a boarder. (2 Story on Contracts, 139, § 744.) The right of lien of the keeper of an inn is settled at com- EXCISE AND HOTEL LAWS. 147 mon law, and is based upon sound reasons. He was com- pelled to receive the guest, and to pay for all property lost or stolen while the guest remained, and nothing excused him from this liability but the act of God or the public enemy. On account of this extraordinary liability the law gave the innkeeper a lien upon the goods of his guest for the satisfaction of his reasonable charges. This lien extended to property brought by the guest and not owned by him. If A. injuriously take away the horse of B., and put him into an inn to be kept, and B. come and demand him, he shall not have him until he hath satisfied the innkeeper for his meat ; and that is good law to this day, if the innkeeper have no notice of the wrong and act honestly. {Jones v. Morrill, 42 Barb., 623,* 626; Mclllvane v. Hilton, 7 Hun, 594; Fox v. McGregor, 11 Barb., 41, 43; Gr inn ell v. CooJc, 3 Hill, 485; Peet v. McGraio, 25 Wend., 653; Ingallsbee v. Wood, 33 1ST. Y., 577.) It will b^ observed that, to create the lien, the relation of innkeeper and guest must exist, for if the owner of the property be a boarder, the innkeeper has no lien. (Story on Contracts, supra ; Moioers et al. v. Fetliers, 61 Y., 34, and see cases above cited.) Where an innkeeper makes a special contract for board and lodging with his guest by the week or month, he has no lien upon the goods of the guest. {Miscli v. 0' Hara, 9 Daly, 361.) As to what constitutes a guest, see next section. The common-law rule as to lien of innkeepers still prevails, and has not been changed by statute. The manner of disposing of the property of the guest of the innkeeper or boarding-house keeper, upon which a lien exists for care, board, etc., is specifically pointed out by statute {ante, section 1, subdivision 7 to 12 inclusive), and which is so plain that no comment will be made. In a case where a fraud is practiced upon an innkeeper by a person receiving food or accommodation with intent not to pay for the same, or where credit is received by the use of any false pretense, or by the person so receiving food or accommodation, and thereafter absconding and surrepti- tiously removing his baggage without making payment, the 148 EXCISE AND HOTEL LAWS. person so offending is gnilty of a misdemeanor, and may be proceeded against criminally. (See subdivisions 5 and 14, section 1.) SECTION VI. Guests. It is not always easy to decide when a sojourner at a hotel or inn sustains the relation of a guest. Travelers and others who come to an inn, and without previous stipulation or engagement as to the duration of their stay, or as to rate of compensation, and who are able and ready to pay for their entertainment and accommodations, and who are received and entertained and use the inn as a temporary home, are guests ; and while behaving properly, and are not drunk, disorderly or laboring under contagious or infectious dis- eases, are entitled to be received and remain as such, if they come at a proper time, and the innkeeper can accommodate them. But slight entertainment' is necessary to be received to constitute a person a guest. {Kopper v. Willis, 9 Daly, 460.) It has been held that the purchase of a drink of liquor was enough to constitute a party a guest. (1 Wait's Law and Prac, 340; McDonald v. Edgerton, 5 Barb., 560; 2 Kent's Com., 593; Clute v. Wiggins, 14 John., 175.) If a traveler, having stopped at a hotel, leave his horse there and go out to lodge and dine with a friend, he is a guest, and the same rule holds good so far as relates to prop- erty, for the care and keeping of which the innkeeper is to receive compensation, though the traveler leave the inn and go to a neighboring town, intending to be absent several days. (Grinnell v. CooJc, 3 Hill, 486.) But if the horse be left at the inn by, the owner, and he does not ask or receive accommodation there for himself, he is not a guest. (In- gallsbee v. Wood, 36 Barb., 452; affirmed, 33 N. Y., 577.) In the case in 3 Hill, the owner first stopped at the hotel and became a guest, and did not break the relation by going away. {McDonald v. Edgerton, 5 Barb., 560.) It is not necessary that a person be at the inn in person if his prop- erty be there in charge of his wife or servant or agent, there in his employ, or as a member of his family, he is a guest, EXCISE AND HOTEL LAWS. 149 but they must be there in such a way that the law will imply the property is in his possession. (CoyTcendall v. Eaton, 55 Barb., 188.) Where a person, not being a traveler, comes upon a special contract, and stay, he is a boarder, and not a guest. So, also, a neighbor or friend, who comes at the request of the innkeeper, is not a guest. But if a traveler puts up at an inn, and be there received as a guest, he does not cease to be a guest and become a boarder, simply by making a special agreement for the price of his board per week. (2 Story on Contracts, 146, section 746; Hancock v. Rand, 17 Hun, 279.) It will be observed by a perusal of subdivisions 13 and 15, section 1, that all persons, no matter what may have been their former condition, or of what race or color, are entitled to be received as guests at any inn and to be enter- tained, and receive an equal enjoyment of the accommoda- tions of such inn, and if the innkeeper should refuse to receive them, he would be guilty of a misdemeanor. But if the person making application to be received as a guest be disorderly, the innkeeper may not only refuse him, but, after he has received him, may eject him from his house. (2 Story on Contracts, 140, section 744.) The chamber of a guest at an inn is not his dwelling- house, but that of his landlord {Rodger 'S v. People, 86 N. Y., 360), the reason being that the guest has no interest, but only the use of the chamber for the time being. The legal possession of the room is in the innkeeper, who must answer for the loss of goods of the guest by theft, only giving temporary occupancy to the guest in the prosecution of his business as innkeeper. (Id.) A person attending a dance at a hotel, on an invitation *issued by the hotel keeper, and stabling his horse in the barn connected with the hotel, purchasing liquors and pay- ing his dancing bill, has been held not to sustain the rela- tion of a guest. {Fitch v. Casler, 17 Hun, 126.) 150 EXCISE AND HOTEL LAWS. SECTION VII. Liability of Lsfnkeepeks for Loss of Money, Jew- els, etc. As the law stood previous to the act of 1855 (chapter 421, ante, section 1, subdivision 1), an innkeeper's liabilities were nearly the same as those of a common carrier. He was bound to exercise the greatest diligence in regard to all the goods and chattels of his guests, whether placed in his im- mediate possession, or deposited in the room assigned to the guest. {Van WycTc v. Howard, 12 How., 147.) He was regarded as an insurer of all property committed to his care {Hulett v. Swift, 33 N. Y., 571), and if such property was in his house it was under his implied care, whether he was ignorant of such fact or not, and, if stolen, he was responsible. And so if stolen from the room of a guest, the innkeeper was liable, although he had no notice that they were placed there. This was so with money, jewels, ornaments, baggage or other chattels, and mere proof of a loss by a guest rendered him prima facie liable. He might, however, exonerate himself by proving that the guest had undertaken the exclusive custody of the goods, or that they were lost by his own negligence, or that the loss resulted from inevitable casualty. The rules of the common law touching the liabilities of innkeepers have not been relaxed by the courts, and are in full force, except as changed by statute, or as they may be modified by special contract. (Ramaley v. Leland, 43 X. Y., 539.) The rule still prevails as to innkeepers, who do not avail themselves of the protection afforded by procuring a safe, except as it has been modified by a very recent statute (section 2, chapter 227, 1883, ante, subdivision 2, section 1), by which the liability of the innkeeper for the loss of wear- ing apparel, goods or merchandise is confined to a sum not exceeding 8500, where it appears that such loss occurs with- out his fault or negligence ; and which statute also relieves the hotel keeper from liability for the loss of any wearing apparel or other chattel, unless within a room assigned to the guest, or specially intrusted to the care and custody of such hotel keeper or his servants. EXCISE AND HOTEL LAWS. 151 This section is stated as an amendment, but is in reality a new statute, which greatly changes the common-law rule as stated above, and is an equitable enactment. It will be observed that where a loss occurs through the fault or negli- gence of the innkeeper, he may still be liable in a greater sum than 8500. If he do not procure the safe and give the notice as required, he is still liable for the loss of money, jewels, etc., — money or jewels not being "goods or mer- chandise " — when stolen or lost from the room assigned the guest, or from his own carelessness. {Kellogg v. Sweeney, 1 Lams., 398.) Section 1 of the act of 1855 as originally passed required notice to be posted in each of the bedrooms of the inn, but by the amendment of 1883, such notices are now only re- quired to be posted in the office and public room, and in the public parlors, and the guest may deliver such articles to the person apparently in charge of the office for deposit in the safe. But it has been held that, if notice is given personally to the guest that a safe is provided, that it has the same force and effect as the posted notice. {Purvis v. Coleman & Stetson, 21 JN T . Y., 111.) And where a guest entered his name on the register under the printed heading, as follows : "Money, jewels and other valuable packages, it is agreed shall be placed in the safe in the office, otherwise the proprietor shall not be responsi- ble for any loss," and there was no proof that this notice was seen or assented to by the guest ; held, that it was not his contract. {Bernstein v. Sweeney, 1 J. & S., 271; Rama- ley v. Leland, 6 Rob. , 558. ) The statutory exemption applies to all money, jewels and ornaments, and applies to every case where the guest has the time and opportunity to make the deposit ; his omission to do so is a neglect within the meaning of the statute, although no carelessness or imprudence is shown. {Rosen- plaenter v. Roessle, 54 1ST. Y., 262.) The protection to inn- keepers is not limited to money or valuables in excess of what the guest may reasonably require for his traveling ex- penses or personal convenience, but embraces all "money, jewels or ornements" which the guest may bring with him without reference to the amount or value. {Hyatt v. Tay- 152 EXCISE AND HOTEL LAWS. lor, 42 N. Y., 258; affirming, 51 Barb., 632.) And where a gnest deposited a package of §20,000 in money, stating that it contained money, but not disclosing the amount, the land- lord was held liable for its loss. (Wilklns v. JjJarle, 44 N. Y., 172.) In the case of Rosenplaenter v. Roessle {supra), Judge Earl in his opinion, page 266, says, "The law is settled in this State that if a guest, on retiring to bed at night, removes a watch or jewelry from his person, or leaves money in his pockets and neglects to deposit the same in the safe provided for that purpose, he cannot hold the landlord liable for the loss of the same." The learned judge cited the case of Hyatt v. Taylor (42 IN". Y., 258), in support of above, but in neither of the cases did the question arise as to a watch, and whether it was included in the exempted articles ; and "a decision is only binding for such law as is necessarily decided therein." (Sharp v. Fanclier, 29 Hun, 194.) The case of Ramaleyv. Leland (43 N. Y., 539), was ignored in the case of Rosenplaenter v. Rosette, suproj. In the former case it was held that the watch of a guest at an inn, worn and used in the ordinary manner is neither a "jewel or orna- ment" within the meaning of the act, and the innkeeper is liable for the loss thereof in the room of the guest, notwith- standing his compliance with the act. And Judge Allen in the opinion, page 542, says, "A watch is neither a jewel or ornament, as these words are used and understood, either in common parlance or by lexicographers. It is not used or carried as a jewel or ornament, but as a time piece or chro- nometer — an article of ordinary wear by most travelers of every class, and of daily and hourly use by all. It is carried for use and convenience and not for ornament." In this case the question was before the court, and its decision will undoubtedly prevail. In support of above, see Bernstein v. Sweeney (1 J. & S., 271). A guest neglected to deposit a large package containing jewelry. About the time he was to leave the hotel he packed his trunk, in which he put the package, then delivered the key of his room to the hotel clerk, requesting the trunk brought down immediately. Before brought down the room was entered and the package stolen from the trunk, and the EXCISE AND HOTEL LAWS. 158 innkeeper was held to be liable, and that the act was not intended to apply to losses occurring before the guest had an opportunity to make the deposit, or after he had packed his trunk and given notice for immediate departure. {Bendet- son v. French, 46 N. Y., 26(3.) The liability of the innkeeper is great, and he should be careful to provide a suitable safe, and post the notices as re- quired by law and with care he is relieved of much of the common law liability. SECTION VIII. Liability for Loss of Guests' Baggage and Effects Generally. The common law liability of innkeepers, for the loss of the chattels of their guests, has been briefly laid down and alluded to in the preceding section. This liability has been very much lessened by statutes. The liability for the loss of money, jewels, etc., has been already treated of. The statutes limiting the liability generally are given {ante, subdi- visions 2, 3 and 4, section 1.) By subdivision 2, passed in 1883, the liability is limited to a sum not exceeding $500, where the loss occurs without the fault or negligence of the hotel keeper ; and in no case is he liable unless the goods or chat- tels are within the room assigned to the guest, or specially intrusted to the care and custody of the hotel keeper or his servants. By section 3, he is not liable for property stored in the hotel barn or out-building with the knowledge of the guest, and consumed by fire, where such fire is the work of an incendiary, and occurs without the fault or negligence of the innkeeper. And by subdivision 4, his ]iabilit} T for loss by fire of any animal is limited to 8300, unless by agree- ment a higher estimate is agreed upon. These statutes do away with many of the decisions affect- ing the liability of hotel keepers made before the statutes were passed, and which decisions will not now be cited. The common law liability, except as limited by statute, is still in force. And to enforce the strict common law lia- bility of an innkeeper the technical relation of guest and innkeeper must be established. {Mowers et al. v. FebJiers, 154 EXCISE AND HOTEL LAWS. 61 N. Y., 34; Ingallsbee v. Wood, 33 id., 577; Fitch v. <7as- Zer, 17 Hun, 126.) The rule of the common law was stated in Cross v. An- drews (Croke's Eliz.), as follows : "The defendant, if he will keep an inn, ought, at his peril, to keep safely his guests' goods. He must guard them against the incendiary, the burglar and the thief ; and he is equally bound to respond for their loss, whether caused by his own negligence or by the depredations of knaves and marauders, within or without the curtilage." {Hulett v. Smith, 33 K. Y., 574.) The above case was decided in 1865, and the rule, as stated above, was held to be good then. Under the provisions of the innkeeper act of 1866 (chapter 658, ante, section 1, subdivision 3), exempting an innkeeper from liability for the loss by fire of property of a guest in a barn or out-building, where it shall appear that the loss was the work of an incendiary, and occurred without negligence on his part, the burden is upon the innkeeper to show that the fire was an incendiary one, and to show absence of neg- ligence on his part. {Faucett v. Nichols, 64 1ST. Y., 377.) Negligence which precedes and facilitates the commission of the crime is as much within the statute as the negligent omission to protect and remove the property after discovery of the fire. (Id.) An innkeeper is responsible for the safe-keeping of a load of goods belonging to a traveler who stops at his inn for the night, if the carriage containing the goods be deposited in a place designated by the servant of the innkeeper, although such place be an open uninclosed space near the highway. {Piper v. Manny, 21 Wend., 282.) The place where the goods are deposited is not the test ; it is whether they are in the custody of the innkeeper or at the risk of the guest. (Id., 283.) But if sheep be put to pasture under the direc- tion of the guest, and are injured by eating poisonous plants, the innkeeper is not liable unless chargeable with negligence or want of due care. {Hawley v. Smith, 25 Wend., 642.) In one case the guest put his horses in the barn, had them fed, and took dinner himself. After paying his bill he re- quested the innkeeper to get his team ; the latter told him to go on and hitch up, and he would be there soon. In EXCISE AND HOTEL LAWS. 155 leading the horses out one of them was kicked, resulting in its death, and it was held that the innkeeper's liability was not at an end ; that unless there was some improper conduct on the part of the guest, the innkeeper was as much liable as though leading them himself. That he was simply doing what it was the duty of the innkeeper to do himself, and was so doing at his request. {Seymour v. Cook, 53 Barb , 451.) An innkeeper letting the hall in his hotel for public pur- poses, holds out to the public that it is safe, and is bound to exercise proper care in providing safe arrangements for entrance and departure to those invited to the hall, and where a person is injured through a dangerous condition of the premises, the owner is liable to respond in damages. (Camp v. Wood, 76 K Y., 92.) By chapter 446 of the Laws of 1860, the keeper of a board- ing-house has the same lien upon and right to detain bag- gage and effects of any boarder, for the amount which may be due for board by such boarder, to the same extent and in the same manner as innkeepers have such lien and such right of detention. Under the above statute the keeper of the boarding-house has the lien without reference to the character of the guests, whether they are transient or permanent boarders. (Slew- art v. McCready, 24 How., 62.) But this lien only exists for the amount actually due by the boarder, and not including board to become due under an agreement to board in future ; nor can it be extended to any other indebtedness, nor to any demand not due at the time of the detention. (Sliafer v. Guest, 35 How., 184.) The act confers no greater rights than innkeepers possessed at common law. (Mc Ill- vane v. Hilton, 7 Hun, 594.) The lien exists upon goods brought upon the premises by a boarder, to furnish his room, although they in fact do not belong to the boarder but to a stranger. (Jones v. Morrill, 42 Barb., 623.) The boarding-house keeper is also liable for the loss of his guest' s goods, occasioned through the negligence of his own servants while they are acting within the scope of their employment. He must exercise due and proper care of the baggage or property of his boarder, such as a prudent per- 156 EXCISE AND HOTEL LAWS. son would take of his own property. {Smith v. Read, 52 How., 14.) The lien of boarding-house keepers and their liability for the loss of the effects of their boarders, does not extend to every private house-keeper, who may occasionally keep one or more boarders, but only to those where the business of keeping boarders is generally carried on, and which is held out, by the owner or keeper, as a place where boarders are kept, (Cady v. McDowell, 1 Lans., 484 ) As this part of the work is intended more esj)ecially for the benefit of innkeepers, no more of the many decisions in relation to boarding-house keepers will be cited. It will be noticed by reference to the statute as amended in 1883 (ante, section 1, subdivision 6), that it is no longer neces- sary for boarding-house keepers to post that statute or their rate of charges in their house. Boarding-house keepers are given a lien upon the effects of their guests, but innkeepers have no lien upon the effects of their boarders. SECTION IX. Enforcing the Liability. Under the earlier decisions upon the subject of suits to enforce the liability incurred by innkeepers, for the loss of their guests' baggage or other chattels, such an action was not one that would authorize an order of arrest under section 179 of the Code of Procedure, except when the defendant was not a resident of the State, or being such was about to depart therefrom, etc. (People v. Willett, 26 Barb., 78.) But in a late case it was held to come within section 549 of the Code of Civil Procedure, and, therefore, the defendant might be arrested in the first instance by an order of arrest ; or at the end of a judgment an execution might be issued thereon, being, as therein held, for an "injury to property," as stated in section 549. {Catlin v. Adirondack Co., 20 Hun, 19.) This was a case against a common carrier. But in HalleribaTce v. Fish (8 Wend., 547), it was decided that the liability of an innkeeper and common carrier were similar. The complaint, however, should allege the cause of action EXCISE AND HOTEL LAWS. 157 as in other cases, in a plain concise manner, either on con- tract or in tort, and the former might be unsafe. It should never be upon contract and in tort, else the defendant, if successful, would have conferred upon him the right to the most beneficial remedy for the collection of his costs, and therefore an execntion against the body might issue on his judgment ; while if the plaintiff should be successful in recovering a judgment in such a case, the defendant would not be liable in tort, but upon a contract, {^filler v. Scher- der, 2 N. Y., 262.) If the plaintiff desires to escape the perils of imprison- ment if he is unsuccessful, he must be careful of his plead- ings, and found his complaint entirely upon contract ; while if he desires the benefit of section 549, he must plead in tort, and in such a manner that there may be no mistake as to his intention. By an examination of the authorities cited in the Cat! in Case {supra), the rule so far as settled, will be apparent. FORMS. No. 1. Oath of Office of Commissioner of Excise. State of New York, ) f 88..' County of Albany, ) I, , do solemnly swear that I will support the constitution of the United States, and the constitution of the State of New York, and that I will faith- fully discharge the duties of the office of commissioner of excise of the town of Knox, in said county, according to the best of my ability. And I do further solemnly swear that I have not, directly or indirectly, paid, offered or promised to pay, contributed, or offered or promised to contribute, any money or other valuable thing as a consideration or reward for the giving or withholding a vote at the election at which I was elected to said office, and have not made any promise to influence the giving or withholding any such vote. Subscribed and sworn to before me, ) this day of , 1883. j No. 2. Bond of Commissioner of Excise. Know all men by these presents : That we, A. B., C. D. and E. F., each of the town of Knox, county of Albany, and State of New York, are held and firmly bound unto G. H., supervisor of said town, and to his successor in office, in the penal sum of $ (double the amount of the excise money of the pre- ceding year), to be paid to the said supervisor, or to his successor in office, for which payment well and truly to be made, we bind ourselves, our and each of 160 FORMS. our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals and dated this day of , 1883. Whereas, the above bounden A. B. was, on the day of , 1 883, duly elected commissioner of excise of the said town of Knox, for the term of three years; now, therefore, the condition of this obligation is such that, if the said A. B. shall faithfully discharge the duties of his office as such commis- sioner of excise, and shall, within thirty days after the receipt thereof, pay over to the said supervisor, or to his immediate successor or successors in office, all moneys received by him as such commissioner of excise, then this obliga- tion to be void, otherwise to remain in full force and virtue. In witness whereof, we have hereunto set our hands and seals this day of , 1883. : &.B.] tU B.j [LB.] I hereby approve of the foregoing bond, both as to form, and as to the suffi- ciency of the sureties. Dated , 1883. G. H., Supervisor. No. 3. Application for Innkeeper's License — Section 12, Chapter 1. To the Board of Commissioners of Excise, in and for the ... . . . of , county of : The undersigned applicant for license, respectfully represent that de- sire to sell and dispose of strong and spirituous liquors, wines, ale and beer, in quantities less than five gallons at a time, to be drank on the premises at , of , county of That propose to keep an inn, tavern or hotel thereat; that the only person interested in the business to authorize which the license shall be used. Dated , 1883. (Signed) County of , ss.: , being duly sworn, say , the foregoing application by h subscribed is true. Subscribed and sworn to before me, ) this day of , 188 . j FORMS. 161 No. 4- Application for Storekeeper's License— Sections 12, 22 and 23. To the Board of Commissioners of Excise of the : The undersigned respectfully represent that desirous to sell and dis- pose of strong and spirituous liquors, wines, ale and beer in quantities less than five gallons at a time, at , in the of , but not to be drank on the said premises, nor in the house or shop of the undersigned, or in any out-house or yard or garden appertaining thereto or connected therewith. And, therefore, , who the only person to be interested in the said business, pray that a license may be granted to the undersigned for the purpose aforesaid, on paying such lawful license fee as may be required in the premises. Dated ,188 . No. 5. Application for License to sell Ale and Beer — Sections 12, and 45. To the Board of Commissioners of Excise, in and for tlie of , county of .• " .. Jm The undersigned applicant for license respectfully represent that de- sirous to sell and dispose of ale and beer in quantities less than five gallons at a time, to be drank on the premises, at of , county of , and pray on own behalf, as the only person intended to be interested in the business aforesaid, that may have a license as above stated, pursuant to law, upon paying such license fee as may be lawfully required in the premises. Dated ,188 . No. 6. Bond of Innkeeper — Section 18. Know all men by these presents : That we, ...... and and , each of the of , county of , and State of New York, are held and firmly bound unto the people of the State of New York, in the penal sum of $250, to be paid to the, said people; for which, payment* w§lj and truly to be made, we bind, ourselves, our and each of our heirs, executors and admin- istrators, jointly and severally, firmly by these presents. Sealed with our seals and dated the day of , 188 . 11 162 FORMS. Whereas, the said intends keeping an inn, tavern or hotel, at , in the said , and is an applicant to the board of commissioners of excise of , for a license to sell strong and spirituous liquors, wines, ale and beer, to be drank in the said inn, tavern or hotel, to be kept as aforesaid, pursuant to the provisions of an act entitled "An act regulating the sale of intoxicating liquors," passed April 11th, 1870. Now, therefore, tlie condition of this obligation is such, that if the said , during the time that he shall keep such inn, tavern or hotel, will not suffer it to be disorderly, or suffer any gambling, keep a gambling table of any descrip- tion within the inn, tavern or hotel so kept by him, or in any out-house, yard or garden belonging thereto, then this obligation to be void, else to remain in full force. [L. 8.] [L. 6.] [L. B.] Signed, sealed and delivered ) in presence of ) County of , ss.: On this day of , A. D. 188 , before me personally came , to me known to be the individuals described in and who executed the forego- ing bond, and severally acknowledged that they executed the same for the uses and purposes herein mentioned. County of , ss.: and of the , in said county, being duly sworn, each for himself doth depose and say, that he is worth the sum of $500 above all just debts and liabilities, and the deponents reside in the , county of , and State of New York. Subscribed and sworn before me, ) this day of ,188 . ) We, the undersigned, commissioners of excise of , do hereby approve of the security to the above bond. Dated at • • •> this day of j ,188 • FORMS. 163 No. 7. Bond for Storekeeper's License — Section 23. Know all men by these presents: That we, and and , of , county of , and State of New York, are held and firmly bound unto the people of the State of New York, in the sum of $500, to be paid to the said people; for which payment, well and truly to be made, we bind ourselves, our and each of our heirs, executors and administrators, jointly and severally, by these presents. Sealed with our seals, and dated the day of ,188 . Whereas, the said is an applicant to the board of commissioners of excise of the for a license to sell strong and spirituous liquors, wines, ale and beer, as a store-keeper, pursuant to the provisions of an act entitled "An act to suppress intemperance and to regulate the sale of intoxicating liquors," passed April 16, 1857, and the acts passed in addition and subsequent thereto. NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, that if the said , during the time that he shall keep any store, will not, during the term for which such license shall be granted, suffer his place of business to become disorderly, and will not sell or suffer to be sold any strong or spirituous liquors, or wines, ale or beer, to be drank at said premises, or in his shop or house, or in any out-house, yard or garden appertaining thereto, and that will not suffer any such liquors sold by virtue of such license to be drank in his shop or house, or in any out-house, yard or garden belonging thereto, then this obligation to be void, else to remain in force. [I* 8.] Ll. S.] [I**] Signed, sealed and delivered in the presence of County of , 88,: On this day of , 188 , before me personally came , to me known to be the persons described in and who executed the foregoing bond, and severally acknowleged that they executed the same for the purposes therein mentioned. County of , ss.: , of the , in said county, being duly sworn, each for himself doth depose and say, that he is worth the sum of $1,000 above all just debts and lia- 164 FORMS. bilities, and that deponents reside in the , county of , and State of New York. Subscribed and sworn to before me, ) this day of ,188 . j We, the undersigned, the board of commissioners of excise of , do hereby approve of the security to the above bond. Dated at , this day of ,188 . Commissioners of Excise. No. 8. Bond for Sale of Ale and Beer — Section 45. Know all men by these presents : That we, and and of , county of , and State of New York, are held are firmly bound unto the people of the State of New York, in the penal sum of $250, to be paid to the said people ; for which payment, well and truly to be made, we bind ourselves, our and each of our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated the ...... day of ,188 . Whereas, the said is an applicant to the board of commissioners of excise of for a license to sell ale and beer at his premises , in the , according to the provisions of an act entitled "An act to suppress intemperance and to regulate the sale of intoxicating liquors," passed April 16, 1857, and the acts supplemental thereto and amendatory thereof. Now, therefore, the condition of this obligation is such, that, if during the term for which license shall be granted, will not suffer place of business to become disorderly, or suffer any gambling or keep any gambling table of any description within the premises so kept by , and that will not sell, or suffer to be sold, any strong or spirituous liquors or wines, except ale and beer, at the place aforesaid, or in any out-house, yard or garden appertaining thereto, then this obligation to be void, else to remain in force. CV«.J [L. S.] [L. S.] Signed, sealed and delivered ) in presence of ) FORMS. 165 County of , ss.: On this day of , 18b , before me personally came , to me known to be the individuals described in and who executed the foregoing bond, and severally 4 aoknowledged that they executed the same for the uses and purposes therein mentioned. The same justification by the sureties, and approval by the commissioners of excise, will be required in the foregoing bond as in No. 6. No. 9. License to Sell Strong and Spirituous Liquors, and Wines, Ale and Beer — Sections 11, 12, 13 and 17. [License expires ,188 . No ] The board op excise of , hereby certifies that being satisfied that , of good moral character, that he ha sufficient ability to keep an inn, tavern or hotel, and the necessary accommodations to entertain travelers ; and that an inn, tavern or hotel is required for the actual accommodation of travelers at the place where such applicant resides or proposes to keep the same. Now, therefore, a license is granted to , permitting to sell and dispose of strong and spirituous liquors, wines, ale and beer, in quantities less than five gallons at a time, to be drank on the premises of said , at , excepting on Sundays or election days, or between one and five o'clock, a. m., and shall expire on the first Monday of May next,* pursuant to the provisions of the act of the legislature of the State of New York, passed April 11, 1870, entitled "An act to regulate the sale of intoxicating liquors," and of the acts amendatory thereof. This license is granted and accepted upon the express condition that the holder shall conform to the requirements of the said acts of the legislature, and that in case of any breach of such condition this license immediately shall be and become null and void. Witness our hands this day of , 188 . Commissioners of Excise of [This license must be kept in a conspicuous place.] *In the cities of New York, Brooklyn and Rochester all licenses shall expire at the end of one year from the time they shall he granted. (Section 11.) 166 FORMS. No. 10. Store-keeper's License to Sell Strong and Spirituous Liquors, Wines, Ale and Beer- Sections 11, 22 and 23. The board of excise of hereby certifies, that a license is granted to , permitting to sell and dispose of strong and spirituous liquors, vines, ale and beer, in quantities less than five gallons at a time, at , excepting on Sundays or election days, or between one and five o'clock in the morning; but not to be drank in h house or shop, or in any out-house, yard or garden appertaining thereto or connected therewith, and shall expire on the first Monday of May next,* pursuant to the provisions of the act of the legis- lature of the State of New York, passed April 11, 1870, entitled "An act to regulate the sale of intoxicating liquors." This license shall not be deemed to authorize the sale of any strong or spir- ituous liquors or wine to be drank in the house or shop of the person receiving the same, or in any out-house, yard or garden appertaining thereto, or con- nected therewith, and is granted and accepted upon the express condition that the holder shall conform to the requirements of the said act of the legislature, and that in case of any breach of such condition this license immediately shall be and become null and void. Witness our hands this day of ,188 . Commissioners of Excise of [This license must be kept in a conspicuous place.] No. 11. License to Sell Ale and Beer Only — Section 45. The board op excise of hereby certifies, that a license is granted to , permitting to sell and dispose of ale and beer only, in quantities less than five gallons at a time, at , excepting on Sundays or election days, or between one and five o'clock, a. m., which shall expire on the first Monday of May next,* pursuant to the provisions of the act of the legislature of the State of New York, passed April 16, 1857, entitled "An act to suppress intemperance, and to regulate the sale of intoxicating liquors," as amended by chapter 856 of the Laws of 1869. This license is granted and accepted upon the express condition that the * See note to No. 9. FORMS. 167 holder shall conform to the requirements of the said act of the legislature, and that in case of any breach of such condition this license immediately shall be and become null and void. Witness our hands this day of ,188 . Commissioners of Excise of [This license must be kept in a conspicuous place.] No. 12. Complaint against Hotel Keeper for Failure to Keep Requisite Accomodations — Section 19. COURT. John Doe as sole Overseer of the Poor of the town of , county, N. Y., against Richard Roe. Plaintiff complains of the defendant and alleges : I. That the plaintiff is the sole and only duly elected, qualified and acting overseer of the poor in and for the town of , in the county of and State of New York. II. That the defendant is a duly licensed inn, tavern or hotel keeper, under the provisions of chapter 628 of the Laws of 1857, entitled "An act to suppress intemperance, and to regulate the sale of intoxicating liquors," and the laws supplementary thereto and amendatory thereof. That as such inn, tavern or hotel keeper he fails and neglects to keep in his said house, inn, tavern or hotel, for the accommodation of travelers thereat, the articles required by section 8 of said act, one or more of them as therein enumerated, to wit: "At least three spare beds for his guests, with good and sufficient bedding, good and sufficient stabling and provender of hay in winter (or hay or pasture in the summer), and grain for four horses or other cattle more than his own stock." And especially has the defendant failed and neglected, and now fails and neglects, to keep in his said house for the accommodation of travelers * [here recite any specific article which the defendant fails to keep as required by section 19]. •The practitioner In pleading under any section is referred to 22 Hun, 274; 5 id., 564; 25 Id., 195; 62 How., 313; which will prompt him to observe great care in making his allega- tions specific. 168 FORMS. III. That by reason of such default in not keeping such articles, or either of them, the defendant as such inn, tavern or hotel keeper has forfeited to the plaintiff as such overseer of the poor the penalty of ten dollars, for the use of the poor, in accordance with the provisions of sections 8 and 22 of said act as amended. Plaintiff, therefore, demands judgment against the defendant for ten dollars, with costs of action. A. B., Plaintiff's Attorney. No. 13. Complaint against a Hotel Keeper \ for failure to put up and keep up a sign — Section 20. [Title of cause.] I. Same as in No. 12. II. That the defendant, on the day of , 188 , was duly licensed to keep an inn, tavern or hotel in the town of . . . . , county, and State of New York, under the excise laws of this State, and pursuant to the pro- visions of an act entitled "An act to regulate the sale of intoxicating liquors," passed April 11, 1870, chapter 175; and has ever since continued to keep an inn, tavern or hotel in said town, under and by virtue of such hotel keeper's license as aforesaid. III. That the defendant failed, within thirty days after obtaining his lieense as aforesaid, to put up a proper sign on or adjacent to the front of his said house, with his name thereon, indicating that he keeps an inn, tavern or hotel, contrary to section 9, chapter 628 of the laws of 1857, and has ever since neglected, and still neglects, to put up and keep up such sign, in all for the period of ten months from the day of , 188 . IV. That the defendant thereby became, and is indebted, to this plaintiff as such [overseer of the poor, in the penalty and sum of ten dollars for each month's neglect to put up and keep up such sign, to wit : the period of ten months, whereby this action has accrued according to the provisions of chap- ter 628, of the laws of 1857, for the aggregate sum of $100, for which sum plaintiff demands judgment besides costs of action. A. B., Plaintiff's Attorney. No. 14. Complaint against Hotel Keeper for Taking Security for Liquors Trusted — Section 21. [Title of cause.] I. Same as in No. 12. II. That on the day of , 188 , the defendant being an inn, tavern or hotel keeper in the town of , in the county of , duly FORMS. 169 licensed as such under and by virtue of the excise laws of this State, did trust John Doe, who was not a lodger in defendant's said hotel, in the sum of ten dollars, for strong or spirituous liquors, wines, ale and beer, sold by the said defendant to the said John Doe, and especially did the defendant, on said day, trust said John Doe for bourbon whiskey, in said sum of ten dollars, and did take a chattel mortgage (or other security) upon certain personal property of said John Doe, as security for said debt incurred as aforesaid, with intent to evade the provisions of section 10, chapter 628 of the Laws of 1857, and the laws amendatory thereof. III. That the defendant thereby, and by reason of the facts aforesaid, did forfeit to the plaintiff double the sum intended to be secured by the taking of such security, to wit, the sum of twenty dollars, according to the provisions of chapter 628 of the Laws of 1857, for which sum plaintiff demands judg- ment, besides costs of action. A. B., Plaintiff's Attorney. No. 15. Complaint for Selling Liquors in Quaatiiies less than Jive Gallons at a time without a License — Section 24. [Title of cause. ] I. Same as in No. 12. II. That the defendant, on the first day of July, 188 , and on each and every day between and including the first day of July, 188 , and the fifth day of July, 188 , sold or caused to be sold, by his duly authorized agents, strong and spirituous liquors, wines, ale and beer, at his house or shop in the town of , county of , in quantities less than five gallons at a time, without having a license therefor, granted as provided by chapter 175 of the Laws of 1870, and the acts amendatory thereof; and especially did the said defendant on the days aforesaid, and each of them, sell brandy to one John Doe in quan- tities less five gallons at a time, without having a license therefor as aforesaid. * III. That thereby the defendant became and is indebted to this plaintiff in the penalty and sum of fifty dollars, for each and every act of selling liquors as aforesaid, whereby this action accrued according to the provisions of sections 13 and 22 of chapter 628 of the Laws of 1857, and the amendatory act of 1869, for the aggregate sum or amount of $ , for which sum plaintiff demands judgment, besides costs of action. A. B., Plaintiff's Attorney * See note to No. 12. Note.— Under those sections giving a penalty or forfeiture for each offense, when it p& desired to prosecute for more than one penalty or forfeiture in the same action, a new cause of action should be inserted stating the facts constituting each offense separately, in sub- stance like II in the above complaint, simply changing dates, kinds of liquor, etc , to con- form to the facts. Ill covers any number of counts. It will be readily understood that a complaint must be formu'ated to fit the individual circumstances of each case. 170 FORMS. No. 16. Complaint for Selling Liquor to be Drank on the Premises without a License — Section 25. [Title of cause.] I. Same as No. 12. II. That the defendant being a resident of in the county of , did, at his house, shop or hotel [here specify the location by street and number, or otherwise] on each and every day between the day of , 188 , and the day of ,188 , sell strong and spirituous liquors, wines, ale and beer, to be drank in his said house or shop, or in an out-house, yard or garden appertaining thereto, or one of them, without having a license therefor as provided by the act entitled "An act regulating the sale of intoxicating liquors," passed April 11, 1870, and especially did the said defendant, on each of the days aforesaid, seM gin to one John Doe to be drank in his said house, without having a license therefor as aforesaid. III. That thereby the defendant became indebted to said plaintiff in the penalty and sum of fifty dollars for each* of such acts of selling liquors without a license, whereby this action accrued according to sections 14 and 22 of chapter 628 of the Laws of 1857, for the aggregate amount or sum of $ Where- fore plaintiff demands judgment against the defendant for the sum of $ , besides costs of action. A. B. , Plaintiff's Attorney. No. 17. Complaint against an Officer for Failure to Arrest a Person Intoxicated in a Public Place— Section 28. [Title of cause.] I. Same as in No. 12. II. That the defendant was, at the time hereinafter stated, a [here state whether sheriff, under-sheriff, deputy-sheriff, constable, marshal, policeman or officer of police], duly [elected or appointed] and qualified in and for the [town and county]. That on the day of , 188 , was intoxicated in the public streets in the village of , said county, and said defendant found said person so intoxicated at said time and in said place, and neglected and refused to apprehend and arrest said person so found intoxi- cated by him, or to cause him to be apprehended and arrested, and neglected and refused to take such intoxicated person, or cause him to be so taken, before a magistrate of the [city or town] where said officer resided, as required by section 17, chapter 628 of the Laws of 1857, as amended by section 2 of chapter 856 of the Laws of 1869. * See pages Ki6 and 107, and note to No. 15. FORMS. 171 III. That thereby the defendant became and is indebted to this plaintiff in the penalty and sum of fifty dollars, and full costs of suit, whereby this action accrued according to the provisions of said statute above mentioned, and for which sum plaintiff demands judgment, besides costs. A. B., Plaintiff's Attorney. No. 18. Complaint Against a Magistrate for Refusal to Entertain a Complaint — Section 28. [Title of cause.] I. Same as in No. 12. II. That on the day of ,188 , John Doe, a constable [or other officer enumerated in No. 17], of the town [or city] of , in the county of , apprehended and arrested , who was found intoxicated in a public place, to wit: Main street, in the said village of , and took said person before Esq., a justice of the peace in and for the town of said county, and made complaint before said justice, that he had found said intoxicated in a public place in said town, but that said refused to entertain such complaint, and make examination into said charge of drunk- enness in a public place, as required by section 17, chapter 628 of the Laws of 1857, as amended by section 2, chapter 856 of the Laws of 1869. III. Same as in No. 17. No. 19. * Complaint for Selling or Giving Liquor to Intoxicated Person — Section 29. fTitle of cause.] I. Same as in No. 12. II. That the defendant, on the 1st, 2d and 3d days of July, 188 , and on each and every of such days, sold or gave away strong and spirituous liquors, wines, ale and beer, and especially brandy, to John Doe, a person then being intoxicated, or suffered such liquor or liquors to be sold or given away under his direction or authority, to such intoxicated person, contrary to the provisions of section 18 of the act entitled "An act to suppress intemperance, and to regu- late the sale of intoxicating liquors," passed April 16, 1857. III. That by reason of such acts as aforesaid, the defendant has forfeited to the plaintiff as such overseer of the poor the penalty of twenty-five dollars for each of the times he so sold, or caused to be sold, the liquor as aforesaid, * See note to No. 15. 172 FORMS. amounting in the aggregate to the sum of $ , for which sum plaintiff de- mands judgment, besides costs of action. A. B., Plaintiff's Attorney. No. 20. Complaint to Oversee)' of the Poor for a Violation, and Requiring him to Prosecute for tlie Penalty Included — Section 41. To , Overseer of the Poor of the toicn of , county, N. T.: Sir — I hereby make complaint against C. D., and charge that he, at his house or hotel in the town of , county of , on the day of , 188 , and on each and every day of said month, sold strong and spirituous liquors, wines, ale and beer, openly to various and divers persons, and especially did he, on said day of sell [or give] brandy and gin to John Doe and Richard Roe and to each of them, to be drank in his said house [out- house, yard, etc.], without having a license therefor as provided by chapter 175- of the Laws of 1870, and I herewith furnish reasonable proof of such violation,, and demand that you, as such overseer of the poor of said town, prosecute said C. D., for the penalty prescribed therefor by section 14 of chapter 628 of the Laws of 1857, for selling intoxicating liquors to be drank on his premises without having a license therefor.* Dated ,188 . A. B. No. 21. Proof to be submitted icith Xo. 20 — Section 41. County of , ss.: E. F. and G. H. , each being severally duly sworn, depose and say, that on the day of , 188 , they were in the bar-room of the hotel owned and kept by C. D., in the town of , .county of , and while so there saw said C. D. sell brandy and gin to John Doe and Richard Roe, and that each of said persons drank said liquors so purchased of C. D. at said time and place. Subscribed and sworn to before me, ) this day of ,188 . j * This complaint can be used where any penalty is given to the overseer by substituting* the proper allegations, and alluding to the appropriate statute. FORMS. 173 No. 22. Complaint against Hotel Keeper for Selling Liquors to an Indian, Apprentice or Minor Under Eighteen Tears of Age — Section 26. ..' COURT. John Doe agst, Richard Roe. Plaintiff complains of the defendant and alleges: I. That plaintiff is the [master, mistress, father, mother or guardian] of [an Indian, apprentice or a minor under the age of eighteen years]. II. That the defendant is an inn, tavern or hotel keeper, duly licensed to sell strong and spirituous liquors, wines, ale and beer, in and for the town of , county, K Y., under chapter 175 of the Laws of 1870, as amended by chapter 549 of the Laws of 1873. That on each and every day between and including the day of July, 188 , and the day of July, 188 , and while so keeping said inn, tavern or hotel the defendant either personally, or by his wife, servant or employee or other agent, knowing or having reason to believe that said was the [apprentice or, etc.,] of the plaintiff, without th§e consent of the plaintiff, sold or gave away to such [apprentice or, etc.,] -strong or spirituous liquors, wines, ale and beer, and especially did the defendant sell, on each of the days aforesaid, brandy to said without the consent of this plaintiff,* contrary to section 15 of chapter 628 of the Laws of 1857, as amended by chapter 420 of the Laws of 1870. III. That thereby the defendant has forfeited and become indebted to this plaintiff in the sum of ten dollars for each and every time he so sold said liquor or liquors, whereby this action accrued, according to the provisions of said statutes, amounting in the aggregate to the sum of $ , for which sum plaintiff demands judgment, besides costs of action. A. B., Plaintiff's Attorney. No. 23. t Complaint by Wife or Husband against Dealer in Intoxicating Liquors for Illegally Selling to Plaintiff's Husband or Wife — Section 30. COURT. Mary Ann Doe agst. Richard Roe. Plaintiff complains of the defendant and alleges : r See notes to Nos. 12 and 15. f See note to No. 15. 174 FORMS. I. That plaintiff is a married woman, and the wife of A. B., who is an habitual drinker of intoxicating liquors. II. That the defendant, who is a dealer in intoxicating liquors in the town of , county of , was duly notified, in writing, by [name and office of magistrate, or overseer of the poor] of the town of , that said A. B., the husband of plaintiff, was an habitual drinker of intoxicating liquor, and was also forbidden thereby to sell or give away any such liquors to him for the term of six months from the time of the giving of such notice, in pursuance of section 19 of chapter 628 of the Laws of 1857. III. That on each and every day from and including the day of ,188 , to the day of ,188 , the defendant sold or gave away intoxicating liquors, wines, ale and beer to said A. B., and especially did he sell said A. B. brandy on each of said days, after having been notified and forbidden, as aforesaid, in violation of said statute. IV. That thereby the defendant became and is indebted to this plaintiff in the penalty and sum of fifty dollars for each act of selling or giving away of liquors, as aforesaid, whereby this action accrued according to the provisions of said statute, for the aggregate amount or sum of $ , f or which sum plaintiff demands judgment, beside costs of action. A. B., Plaintiff's Attorney. No. 24. * Complaint by Wife that Tier Husband is an Habitual Drinker of Intoxicating Liquors — Section 30. County of , ss. : Mary Ann Doe, of the town of , being duly sworn, says, that her hus- band, John Doe, is an habitual drinker of intoxicating liquors, and [here give definite statement as to his habits], and deponent hereby makes complaint, on her information and belief, that her said husband procures the liquors drank by him of the following named dealers in intoxicating liquors: , and hereby requires you as [magistrate or overseer of the poor] of the town of to notify and forbid said dealers not to sell or give away intoxicating liquors to said John Doe, in accordance with the provisions of section 19 of chapter 628 of the Laws of 1857. Subscribed and sworn to before me, ) this day of 188 . ) * The same complaint and proof Is required in the case of wife, parent or child under section 30. FORMS. 175 No. 25. Notice to Dealers Not to Sell to an Habitual Drinker — Section 30. To ; Take notice, that complaint has been duly made to me [overseer or magis- trate] in accordance with section 19, chapter 628 of the Laws of 1857, that John Doe is an habitual drinker of intoxicating liquors. You are, therefore, hereby forbidden to sell or give away such liquors to said John Doe for the term of six months from the service of this notice upon you, under a penalty of fifty dollars, and costs of suit, for each and every disobedience of this order. Dated ,188 . Overseer, etc., or Magistrate, etc. No. 26. Complaint on Hotel Keeper's Bond — Sections 18 and 35. SUPREME COURT— County The People of the State of New York against A. B., C. D. and E. F. The plaintiffs, complaining of the defendants allege on information and belief— I. That the defendant A. B., is a licensed hotel keeper under chapter 175 of the laws of 1870, and its amendments, residing and keeping hotel in the village of , at [street and number]. II. That said village is a municipal corporation under the laws of this State [omit II if the action is not prosecuted by the trustees of a village]. III. That on or about the first Monday of May, 183 , the defendant A. B., duly made application for, and received a hotel keeper's license under said statute, to sell strong and spirituous liquors, wines, ale and beer, to be drank in his inn, tavern or hotel, from the board of commissioners of excise of the town of , in which such village is situate. IV. That previous to the granting of such license to said A. B., he made, executed and delivered to said board of commissioners of excise the bond re- quired to be given by an inn, tavern or hotel keeper, by section 7 of chapter 628 of the Laws of 1857, which bond bears date May ,188 , and the defendants, C. D. and E. F., duly became sureties upon said bond, and justified as required by law, and the same was thereupon duly delivered to said board of commissioners of excise of said town, and they thereupon duly approved of the sureties to said bond, and the said license was thereupon duly issued as 176 FORMS. aforesaid. That the following is a copy of said bond, acknowledgment, justi- fication and approval [here insert copy of bond]. That thereupon the said A. B. became a duly licensed inn, tavern or hotel keeper in said town, and as such authorized to sell strong and spirituous liquors, wines, ale and beer, under the terms of said license, but not otherwise. V. That said A. B. notwithstanding the restrictions contained in said bond, at divers times, and on each and every day subsequent to the granting and delivery of such license to him, caused a breach of the conditions of said bond, and did keep a gaming table within his inn, tavern or hotel, so kept by him, and did suffer gambling within his inn, tavern or hotel, and did keep therein a billiard table or gaming table, and that his guests and others used it under a rule that the losing party of each game should pay the said A. B. for the use of the table a specific sum of money, and furnished lights and attendants at said table; that he also kept, during said time, a gaming table within said hotel, on which was played a game called pin pool, for the use of those who frequented said hotel, and upon which gaming was allowed and permitted by said A. B. , the losing party paying for drinks and entertain- ment furnished by said A. B., who permitted gambling to be done on said table, and did also suffer gambling to be done in his said hotel, with dice, and did suffer dice to be shaken for the drinks and cigars therein, the losing party to pay therefor; and did suffer said hotel to be disorderly within the intent an meaning of the statute under which said bond was given, during the whole time that elapsed between the time of the granting of such license and the commencement of this action, and the conditions of said bond thereupon became and were broken on each and every day during said time. VI. Plaintiff further shows, that at a meeting of the board of trustees of said village [board of commissioners of excise, or supervisor], held on the day of , 188 , it was resolved by said board, that an action should be com- menced in pursuance of section 24 of chapter 628 of the Laws of 1857, againstt the said defendants upon said bond to recover the penalty or forfeiture given upon a breach thereof, and this action is prosecuted in behalf of, and by said board for that purpose, in pursuance of their duty under the statute. VII. That by reason of the facts hereinbefore set forth, an action has accrued to the plaintiffs upon said bond, and the defendants are indebted to the plain- tiffs thereon, jointly and severally, according to the terms and conditions thereof, by reason of such breach, in the sum of $250, for which sum plaintiffs demand judgment besides costs of action. *Dis't Atfy of County, AtVy for Plaintiffs. * See section 1962, Code of Civil Procedure. [This complaint must be verified by one of the parties bringing the action.] FORMS. 177 No. 27. Complaint Under the Civil Damage Act — Section 69. COURT. against C. D. and E. F. Plaintiff complains of the defendants and alleges: I. That she is and has been, since the day of ,188 , the wife of A. B., and has ever since her marriage to him lived with and been entirely dependant upon her said husband for her means of support, and was up to the 4th day of July, 1883, supported and provided for by him. That from the time of plaintiff's marriage up to said July fourth the said A. B. had been entirely sober and industrious ; but that previous to the date of their said marriage he had been in the habit of using intoxicating liquors to excess, all of which was well known to the defendants. II. That defendant C. D. is the keeper of a hotel in the town of , county of , called the house, and has been for the last months. That the same was and is leased by said C. D. of the defendant E. F., with full knowledge, on the part of said lessor, that the same was to be used and kept for a hotel in which intoxicating liquors were to be sold. III. That on the 4th day of July, 1883, the said A. B. , plaintiff's husband as aforesaid, went to defendant's said hotel and then and there commenced to drink intoxicating liquors at the bar of said C. D., which liquors were sold or given to said A. B. by said C. D., or his duly authorized agent or bar-tender. That plaintiff thereupon forbade the said C. D. to sell or give her said husband any more intoxicating liquors ; but he then and thereupon insolently ordered plaintiff out of doors, and continued to sell or give to plaintiff's said husband intoxicating liquors, and especially did he give or sell to, and to be drank by him, whiskey, gin and strong beer, which caused her said husband to become intoxicated and unable to manage and control his conduct or actions, and he thereupon, on said July 4, 1883, by reason of such intoxication, wandered aimlessly out into the night and fell and lay upon the railroad track in the vil. lage of and was there run over by a train of cars and his leg was broken and he was otherwise greatly injured and mangled by said cars and he became thereby totally and forever disabled, as plaintiff verily believes, for the per- formance of any manual labor, and upon which she is dependent for support, and plaintiff has been by reason thereof reduced to great want and destitution. IV. That by reason of the facts aforesaid, plaintiff has been deprived entirely of her means of support, and has suffered damage in the sum of $ , for which, and for exemplary damages, she is entitled to recover of the defendants 12 178 I FORMS. in accordance with the provisions of chapter 646 of the Laws of 1873. "Where- fore the plaintiff demands judgment against the above named defendants for the sum of $ , besides costs of action. X. Y., Plaintiff's Attorney. Informations to be Presented to Magistrates Alleg- ing the Commission of Various Misdemeanors under the Excise Laws. No. 28. For Selling to an Indian or Minor under Fourteen — Section 26. County, 88.: A. B., being duly sworn, deposes and says, that he resides in , said county; that on the day of , 188 , in said town, one C. D. did unlawfully and knowingly w violate section 15 of chapter 628 of the Laws of 1857, as amended by chapter 420 of the Laws of 1877 of the State of New York, and that he did on that day, personally [or by his wife, servant, etc.],f sell or give away strong and spirituous liquors, to wit: whiskey, to one E. F., an Indian, at his house or shop in the said town of , said county and State. [Or from the f] sell strong and spirituous liquors, to wit: brandy, to G. H., a minor under the age of fourteen years, knowing or having reason to believe such minor to be under such age. Subscribed and sworn to before me, ) this day of ,188 . ) No. 29. For Public Intoxication — Section 28. County, ss.: A. B., being duly sworn, deposes and says, that he is a constable in and for the town of , said county; that on the day of ,188 , he found C. D. intoxicated in a public street or place in said town, to wit: in the post-office in the village of , in said town, contrary to the provisions of section 17 of chapter 628 of the Laws of 1857, as amended by chapter 856 of the Laws of 1869. Subscribed, etc. No. 30. For Selling to a Person Guilty of Habitual Drunkenness — Section 31. [As in form No. 28 to the *, continuing] violate section 20, chapter 628 of FORMS. 179 the Laws of 1857, by selling strong and spirituous liquors, to wit: whiskey and beer to E. F., a person guilty of habitual drunkenness. [Or to E. F., the hus- band of G. F., to whom the said C. D. had been forbidden to 6ell intoxicating liquors, in pursuance of section 20 of chapter G28 of the Laws of 1857.] Subscribed, etc. No. 31. For Selling to a Pauper or Inmate of Poor-7iouse — Section 31. [As in form No. 28 to the* continuing] violate section 20 of chapter 628 of the Laws of 1857, by knowingly selling strong and spirituous liquors, to wit: whiskey and rum to E. F. , a pauper and inmate of a poor-house. That at the time of such sale the said C D. was an inn, tavern or hotel keeper. Subscribed, etc. No. 32. For Selling on Sunday or Election Day — Section 32 [As in form No. 28 to the *, continuing] violate section 21, chapter 628 of the Laws of 1857, as amended by chapter 549 of the Laws of 1873, by selling or giving away intoxicating liquors, to wit, whiskey and beer to E. F. and G. H., and other persons as a beverage. That said day of , 188 , was Sunday [or was a day on which a general or special eleetion was held, and said sale was made within one-quarter of a mile of the poll of such election]. Subscribed, etc. No. 33. For Adulterating or Selling Adulterated Imported Liquors — Section 40. [As in form No. 28 to the *, continuing] violate section 29 chapter 628 of the Laws of 1857, and that he did on that day, and on several other days during said month, adulterate imported or other intoxicating liquors with poisonous or deleterious drugs or mixtures, or sold the same, in this, to wit [here recite the facts as near as ascertainable] : or [that he knowingly imported or sold, on said day, intoxicating liquors or wines adulterated with poisonous or deleterious drugs or mixtures, to wit]. Subscribed, etc. No. 34- For Railroad Employee Intoxicated, etc— Section 51. [As in form No. 28 to the *, continuing] violate section 420 of the Penal Code of the State of New York, and that he did, while employed as engineer 180 FORMS. [conductor, or brakeman, etc.], become and was intoxicated while engaged in the discharge of his duties as such engineer on the railroad. Subscribed, etc. No. 35. For Selling in a Court House — Section 54. [As in form No. 28 to the *, continuing] violate section 32 of the Code of Civil Procedure, and did on that day sell strong, spirituous or fermented liquors or wines, to wit, whiskey and ale, in the building established as the county court house of said county, situated in the village of , and while a court was sitting therein. Subscribed, etc. No. 36. * Complaint to a Board of Excise of a Violation — Section 49. I, A. B., a resident of the town of , county of , hereby com- plain to you, as the board of commissioners of excise in and for the said town, and allege that C. D., a hotel keeper of said town, duly licensed to sell strong and spirituous liquors, wines, ale and beer, under and by virtue of the excise laws of this State, has violated the terms and conditions of his license by selling strong and spirituous liquors, wines, ale and beer, on Sunday, the day of ,188 , to E. F. and a number of other persons whose names are to me unknown [or recite any other violation], and I hereby demand that you, as such board of excise, summon said C. D. before you and inquire into the truth of such charges, according to section 8 of chapter 175 of the Laws of 1870, as amended by section 4, chapter 549 of the Laws of 1873. A. B. To tlie Board of Commissioners of Excise of the town of , county of No. 37. Affidavit under Section 57, Code of Criminal Procedure, where the Offender desires the Charge Prosecuted by Indictment. County of ss. : A. B. , being duly sworn, says that he has been arrested upon a charge of violating section 13 of chapter 628 of the Laws of 1857, for selling strong and spirituous liquors in quantities less than five gallons at a time, without having a license therefor as provided by law [or any other offense under the excise * It would be the safer way to have proofs accompany the above complaint, substantially like form No. 21. This would compel attention. FORMS. 181 law] that [here state reasons for prosecution by indictment]. Deponent there- fore prays that an order may issue under and in pursuance of section 57 of the Code of Criminal Procedure, allowing the charge against deponent to be prose- cuted by indictment. Subscribed, etc. No. 38. Certificate under Section 57 of the Code of Criminal Procedure. I, , county judge of county, do hereby certify upon proof fur- nished me, that it is reasonable that the charge of selling strong and spirituous liquor in quantities, etc. [using the words of the statute characterizing the offense charged], made against A. B., and w T ho is now under arrest upon a warrant issued for an alleged commission of said offense, by , justice of the peace of the town of , in said county of , be prosecuted by indictment, and I hereby fix the amount in which the defendant shall give bail to appear before the grand jury at the sum of C. D., County Judge, or Justice of the Supreme Court. On filing such certificate with the magistrate, and furnishing bail in the amount stated, the defendant is entitled to be discharged. The form of undertaking, under section 568, Code Criminal Procedure, can easily be made applicable. There are forms applicable to several sections of the excise laws, as contained in this work, which it is not considered necessary to insert here, as they are of limited use and easily prepared from t^e Code of Criminal Procedure. (Banks' 2d edition.) Beference is made either to the section or the number of the form as contained in said edition of the code. Information for disorderly house, form No. 34; warrants, sections 151 to 156; return to warrant, form No. 86 ; statement and questions put to defendant by justice, form No. 90; undertaking, section 568; commitment, section 214; indictment, section 276; certificate of conviction, section 721. INDEX. ACTIONS: page. against dealers in, and sellers of, liquors 36, 50 judgment in, revokes license 39, 43 for penalties, by whom to be brought 37, 102 when brought by persons not officers 40, 104 discontinuance of, without consent 105 on bonds, who to bring 39, 106, 109 ACT OF 1857: sections 2, 3, 4 and 5 generally superceded 25 made a part of act of 1870 42 ACCOMMODATIONS: to be kept by hotel keepers 30 ADULTERATING: imported liquors a misdemeanor 40 foods and drinks 49 AGENTS: sales by, when principal liable 100 liable for their own wrongful acts 108 ALBANY: section 56, Code of Criminal Procedure, not applicable to 44, 100 ALE AND BEER: license for selling 42 sale of, act to apply 42 are strong and spirituous liquors 109. 114 form of application for license to sell 1G1 form of bond for license 164 ALLEGANY COUNTY: special act for 66 184 INDEX. ANIMAL: page. value of, belonging to guest ' 138 APPRENTICE: liquors not to be sold to 32 fine for selling to 33 a misdemeanor to sell to 97 APPLICATION: for license, bow made 24 APPOINTMENTS: to fill vacancies in towns 17, 85 in cities generally 85 under special statutes 85 must be in writing 85 wbo to be signed by 86 ARREST: of persons violating excise laws 33 duties of officers and magistrates in 33, 34 by village officers , 74 » in New York and Brooklyn, not without warrant, except, etc 21 ATTORNEYS: may be employed by commissioners of excise 87 by overseers of the poor 103 legal fees and disbursements of, how paid 88, 103 ATTORNEY-GENERAL: when to bring actions 110 opinions of 122 AUDITORS: to audit bills 88 BALLOT: for commissioners of excise, to be separate 18 how prepared 84 BEER: is a strong and spirituous liquor 109, 114 when to license selling of 23 BLANKS: for commissioners, how paid for 43 BOARD OF EXCISE: to keep records 24, 27 how composed 17 to grant licenses 24, 26 INDEX. 185 BOARD OF EXCISE — (Continued). page to annul licenses, and when 43 full number required to make 89 service on, how made. . 89 BONDS: must be executed by hotel keepers 30 must be executed for sale of ale and beer 30, 42 contents, sureties and conditions 30 to be given by store-keepers 31 terms and conditions of 31, 32 where and when to be filed 39 breach of 39 who to bring action for breach 39, 106 forfeiture bond not a penalty 38 of commissioners of excise 18, 86 effect of failure to file 87 when broken 110 actions on 109 BOOKS: for commissioners of excise, how paid for 43 BROOKLYN: commissioners, how appointed in 18, 61 salary of commissioners 61 licenses, how and when granted 21 when licensee may remove 21 licensee not to be arrested without warrant 21 exception 22 section 17 of chapter 1, not applicable to 22 selling liquors in, without license a misdemeanor 22 when licenses expire in 23 hotel accommodations not required to procure licenses 21, 31 special acts 21, 60 CHARITABLE INSTITUTION: disorderly children may be sent to 48 CHILD : may maintain action against seller 36, 50 CHILDREN: not to be admitted to saloons 47 not allowed to play games 47 may be detained as witnesses 47 disorderly, how disposed of 48 186 INDEX. CIDER: page. may be proved to be intoxicating 30 CITIES: license fee in 24 having population of more than 30D,000 21, 23 not to hold election, where liquor sold 46 vacancies, how filled in 85 bills against, how collected 88 CIVIL DAMAGE ACT, 50, 51 : is a part of the excise laws of the State 123 general provisions 123 creates a new cause of action 124 jurisdiction of justices of the peace under 50, 125 constitutionality of 126 when cause of action will not exist under 127 when joint action will not lie under 128 recovery under, where several are injured 129 when action exists for loss of means of support 131 when action exists for injury to person or property 132 liability of owner of premises under 132 what is no defense under 134 damages under 135 CIVIL RIGHTS: all persons entitled to entertainment by innkeepers 141 COMMISSIONERS OF EXCISE: to be elected in towns. 17 who not to be 17, 84 election, qualifications, powers and duties 17, 75, 77, 84 compensation of 17, 43, 90 one to be elected annually 18 vacancies, how filled 18 how voted for 18, 84 oath of office and bond of 18 penalty for neglect to take oath or file bond 86 form of oath of office 159 form of bond of 159 oath of office of, who to be taken before 86 to be appointed in cities 18-20 shall grant licenses in New York and Brooklyn, and when 21 INDEX. 187 COMMISSIONERS OF EXCISE— {Continued). page. when to meet to grant licenses in towns 23 in cities 23 have power to grant licenses 24, 26 but not until certain conditions are complied with 27 may grant licenses without right to sell liquors 45 must keep records 24, 27 to deposit book of minutes 43 to sign licenses 27 when guilty of a misdemeanor 30 when to prosecute for penalties 38 not to appoint a clerk 43 to annul licenses, and when 43, 89 may summon and swear witnesses 44 when not to grant license in three years 39 how elected 84 how appointed 85 cannot assign or transfer their office 86 how office vacated 86 effect of failure to file oath of office or bond 87 two persons cannot hold same office 87 to sue for penalties in certain cases 38, 88 may employ an attorney 87 must meet as a board 88, 89 when cannot be coerced 89, 90 when may be coerced 90, 94 105 when may be indicted 90 COMPLAINTS, FORMS OF. . (See Forms.) COMPANIES: incorporated, not to employ intemperate persons 41 CONCERT SALOONS: children not to be allowed in 47 CONFLICTING DECISIONS, 91, 92, 96, 98, 106. CONSTABLE: duties of 33, 34, 42 CONSTITUTIONAL: excise law is 116 civil damage acts is 126 COSTS: when plaintiff personally liable for 104 188 INDEX. CONVICTION: PAGE. revokes license 39, 43 in what courts to be 95 punishment under. . . 99 no bar to action for penalty 10? COURTS OF SPECIAL SESSIONS: jurisdiction of 45, 95 exclusive jurisdiction, when 95 COURT HOUSES: liquors not to be sold in 46 DAMAGES: for unlawful selling 40 plaintiff may recover 40 under civil damage act 123-136 DANCE-HOUSES: children not to be allowed in 47 DAYS: when sale of liquor is prohibited 37 DECLATORY: of chapter 145, Laws of 1879 20 DEFENDANT: may deny official character of officer 103 DELIVERY: of appointment to office, not necessary 86 of license necessary 94 DISORDERLY PERSONS: certain children are " 48 who are, and how disposed of 48 DISTRICT ATTORNEY: duties of 110 ELECTION: of commissioners of excise 17, 84 ballot used in 84 ELECTION DAY: not to sell liquor on 37 penalty therefor 37 EMPLOYER: may maintain action against seller 50 INDEX. 189 EVIDENCE: page. when knowledge and intent must be shown 33 official character may be shown by parol 103 burden of proof, where 107 EXCISE BOARD: metropolitan, repeal of 42 EXCISE MONEYS: how disposed of 18, 43 when for town expenses 46 EXPENSES: of procuring books, etc., how provided for 43 FINES: for selling to an Indian or minor under fourteen years 33 for selling to pauper, etc 37 for selling on Sunday's and election days 37 for adulterating and selling imported liquors 40 for intoxication of railroad employee 44 for selling to person after notice not to do so 36 for Sabbath breaking 142 for refusal of innkeeper's to receive guests 142 FORFEITURES. (See Penalties and Forfeitures.) FORMS: oath of office of commissioner of excise 159 bond of commissioner of excise 159 application for innkeeper's license 160 application for store-keeper's license 161 application for license to sell ale and beer 161 bond of innkeeper 161 bond for store-keeper's license 163 bond for sale of ale and beer 164 license to sell strong and spirituous liquors, and wines, ale and beer. . 165 store-keeper's license to sell strong and spirituous liquors, wines, ale and beer 166 license to sell ale and beer only 166 complaint against hotel keeper for failure to keep requisite accommo- dations 167 complaint against hotel keeper for failure to put up and keep up a sign, 168 complaint against a hotel keeper for taking security for liquors trusted, 168 complaint for selling liquors in quantities less than five gallons at a time, without a license 169 190 INDEX. FORMS — ( Continued). PAGE, complaint for selling liquor to be drank on the premises without a license 170 complaint against an officer for failure to arrest a person intoxicated in a public place 170 complaint against a magistrate for refusual to entertain a complaint . . 171 complaint for selling or giving liquor to an intoxicated person 171 complaint to overseer of the poor for a violation, and requesting him to prosecute for the penalty incurred 172 proof to be submitted with 172 complaint against hotel keeper for selling liquors to an Indian, ap- prentice or minor under eighteen years of age 173 complaint by wife or husband against dealer in intoxicating liquors for illegally selling to plaintiff's husband or wife 173 complaint by wife that her husband is an habitual drinker of intoxi- cating liquors 174 notice to dealers not to sell to an habitual drinker 175 complaint on hotel keepers bond 175 complaint under the civil damage act 177 complaint to a board of excise of a violation 180 informations, for selling to an Indian or minor under fourteen years. . 178 for public intoxication 178 for selling to a person guilty of habitual drunkenness 178 for selling to a pauper or inmate of a poor-house 179 for selling on election day 179 for adulterating or selling adulterated imported liquors 179 for railroad employee intoxicated 179 for selling liquors in a court house 180 affidavit under section 57, Code of Criminal Procedure, where the offender desires the charge prosecuted by indictment 180 certificate under section 57 of the Code of Criminal Procedure 181 FREEHOLDERS: . petition of, unnecessary 29, 93 GAMBLING: not allowed in hotets . . . : 30 GAMBLING TABLE: billiard table is, when Ill GUARDIAN: may maintain action against seller 50 not to sell liquor to minor without consent of 32 penalty for selling to minor without consent of 33 INDEX. 191 GUESTS: page. of ' innkeeper's, what constitutes 148 absconding, guilty of misdemeanor 138 loss of money, jewels, etc 13T, 150 loss of property generally 137, 153 enforcement of their rights for loss 156 statutes relating to 137-143 HABITUAL DRUNKARDS: not lawful to sell to 36 HAVERSTRAW: special act 63 HOTEL: license to, how granted 27 license to, when expires 23 license to, not transferable 94, 118 license fee in cities 24 license fee in towns 24 license, form of 165 license to be posted in room where sales made 24 when to be kept closed 42 definition of 143 to keep certain accommodations 20 must be necessary before licensed 30 effect of revoking license to 39 cannot have store license 94 (See Inns and Innkeepers ) HOTEL KEEPERS: qualifications of 29 to put up signs 31 penalty for a failure to put up sign 31 not to trust liquors except to boarders 31 security given to, for liquors trusted, void 31 to give bonds for license 30 contents, sureties and conditions of bond 30 form of bond 161 what accommodations to be kept by 30 penalty for failure to keep accommodations 30 petition of freeholders for license to, not necessary 30 not allowed to sell to Indian, minor or apprentice 32 penalty therefor 33 penalty, how recovered 33 192 INDEX. HOTEL KEEPERS — {Continued). page. not allowed to sell to habitual drinker after notice 36 penalty therefor *. 37 not allowed to sell to pauper 37 penalty for violation 37 actions against, by whom brought for penalties 36, 38, 102 actions against, on bonds 39, 106 actions against, under civil damage act 50, 123 effect of revoking license to 39 may take hotel license only 45 duties, liabilities, etc., under the excise laws 80-83 for what penalties liable 81, 82 cannot assign their licenses 118 (See Hotel and Innkeepers.) HOUSE OF REFUGE: use of liquors in 46 HUSBAND: may maintain action against seller 36, 50 liable to penalty for sale by wife 108 ILLEGAL TRADE: unlicensed sale of liquor is 118 IMPRISONMENT: when for intoxication 35 INCORPORATED COMPANIES: not to employ intemperate persons 41 may build or keep hotels, and when 142 INDIANS: not lawful to sell to 32 fine for selling to 33 a misdemeanor to sell to 97 INDICTMENT: how affected by Code of Criminal Procedure 95 when commissioners of excise may be indicted 90 principles governing 112 INFORMER: evidence by 108 INFORMATIONS, FORMS OF: (See Forms.) INJURY: by intoxicated person, who may recover for 50 INDEX. 193 INNOCENSE: pa«e. presumed, when sale made by agent 101 INN: what constitutes one 143 a restaurant is not 143 INNS: may be licensed 45 statutes relating to 137-143 what are 143 (See Hotel; Innkeepers.) INNKEEPERS: to give bond 30 form of bond 161 to be licensed 45, 144 and their guests, statutes relating to 137-143 rights of 144 required to post notices, and where 138 duties of, to their guests and their property 145 refusing to receive guests guilty of misdemeanor 141 lien of 146 lien of, how enforced 139, 140 absconding guests of 138 may'keep a safe, and benefit of having 137 liability for loss of money, jewels, etc 137, 150 a watch is not a jewel or ornament 152 liability for loss of guest's property generally 153 liability of, how enforced 156 (See Hotel; Hotel Keepers.) INTEMPERATE PERSONS: employment of, prohibited 41 INTENT: question for a jury 100 INTOXICATING LIQUORS: what are 114 INTOXICATED PERSONS : not lawful to sell liquors to 36 penalty for a violation 36 not^allowed as employees on railroads 44 punishment for 44, 45 injured may maintain action against seller 50, 51 when a person is intoxicated 116 13 194 INDEX. INTOXICATION: PAOB . in public place, and arrest therefor 34 proceedings and punishment for 34, 35 by employee of railroad, punishment for 44, 45 no excuse for crime 49, 117 its effect upon intent to commit crime 49 JAIL: liberties, not allowed to persons convicted 41 use of liquors in 46 JURY: accused person entitled to trial by 99 JUSTICE OF THE PEACE: jurisdiction of 45, 50 cannot be commissioner of excise 17 jurisdiction under civil damage act 125 (See Magistrates.) JUVENILE REFORMATORIES: liquors in 46 KINGSTON: special act for 53 LAGER BEER: not allowed in public place 46 when intoxicating , 115 LANDLORD AND TENANT : duties and responsibilities 118 LIABILITY : of commissioners of excise 30 of innkeeper to guest, for money, jewels, etc 137, 150 of innkeeper to guest, for property generally 153 of innkeeper to guest, how enforced 156 LICENSE: in New York and Brooklyn 21 when and how granted in New York and Brooklyn 21 when and how granted in towns and cities 23, 91 when to expire in towns 23 when to expire in cities 23 for part of a year, fee for 23 to whom granted 24 application for, how made 24 INDEX. 195 LICENSE — ( Continued) . page. form of applications for 160, 161 must be kept posted 24 to be exhibited when required so to do 24 effect of failure to exhibit 24 record of, to be kept 24 to be signed by commissioners 27 to be in writing and delivered 94 when to be granted to hotels 29 when to be granted to store-keepers 31 what to contain 31, 32 what necessary to obtain 24, 30, 31 penalty for selling without 32 when not to sell under 42 when forfeited 43 proceedings to annul 39, 43, 89, 94 conviction for a violation, forfeits and annuls 43 to innkeeper without privilege of selling liquors 45 for sale of ale and beer 23, 45 when revoked, another not to be issued 39 fees for 24, 86 different kinds of, defined 92 conflicting decisions upon 91, 92 to non-residents 93 cannot be assigned 94 does not authorize sale, except where taken for 108 fee for, how disposed of 18, 19 amount of 24, 86 for part of a year 23 LICENSE LAW: of 1857, how applicable 42 LIEN: of innkeepers 146 disposition of guests baggage under 139, 140 LIQUORS: license for selling 24 may be sold in quantities exceeding five gallons 24, 25 but not to be drank on the premises 25 when not to be sold 37, 42 trusted, no recovery therefor 31 196 INDEX. LIQUORS — ( Continued). page. not lawful to sell in court house 46 punishment for a violation 46 not allowed in poor-house, etc 46 ale and beer are strong and spirituous. 109 LOCAL ACTS: not affected by excise laws 42 LOCKPORT: special act for 57 MAGISTRATE: duties of, on complaint to 34, 36 to issue warrants 34 duty of, when persons intoxicated 34, 35 duty of, on complaint of wife, husband, etc 36 to give notice forbidding sale 36 sale after notice unlawful 36 duty of, on conviction for a violation 39 duty of, in case of disorderly persons and children 48, 49 MANDAMUS: when commissioners connot be coerced 1 9 when commissioners may be coerced 90, 94, 105 MAYOR: to appoint commissioners 18 to nominate commissioners in New York and Brooklyn 18 MEASURE: selling by 32 penalty for, without a license 32 MEDINA: special act for (34 METROPOLITAN POLICE DISTRICT: excepted 46 MINOR: not lawful to sell liquor to 32, 33 penalty for selling to 33 not to be allowed in certain places 47 not allowed to play games in certain places 47 MINUTE BOOK: of board of excise, where deposited 43 INDEX. 197 MISDEMEANORS; page. selling to Indian or minor under fourteen years 33, 97 commissioners guilty of, when 30 selling liquors on Sunday or election day. 37 adulterating imported liquors and selling same 40 intoxication of employees of railroad 44, 45 selling in court house 46 keeping lager beer, etc., at polling place 40 (See section 155, Penal Code) allowing liquors in jails, etc 47 allowing children in certain places 47 allowing children to play games in certain places 47 physician producing injury while intoxicated 49 adulterating or selling certain foods and drinks 49, 50 selling to apprentice or minor under eighteen years 97 all offenses are, when caught in the act 33, 98 selling to intoxicated person not 100 failure to keep accommodations . 97 failure to keep up sign 87 trusting liquors and taking security 97 selling without license 97 selling to be drank on premises 97 all offenses are not, 17 (note) 97 what offenses are, 17 (note) 97 Absconding guests 138 Sabbath breaking is 142 refusing to receive and entertain guests 141 MONEYS: license, in towns, how disposed of 18 in cities, to whom paid 19 when may be used for town expenses 46 MONEY, JEWELS, ETC.: liability of innkeeper for loss of 137, 150 MUNICIPAL CORPORATIONS: powers of 120 NEWBURGH: special act 52 NEW YORK CITY: commissioners in, how appointed 18 salary of commissioners in 19 198 INDEX. NEW YORK CITY— {Continued). page. salary of commissioners, how paid 19 disbursements of commissioners in 19 licenses in, how and when granted 21 licensee in, may remove 21 licensee not to be arrested without warrant 21 exception 22 section 17, chapter 1, not applicable to 22 other acts not affected 22 excise moneys, how disposed of 19 selling liquors in, without license a misdemeanor 22 hotel accommodations not necessary to procure license 21, 31 special statutes relating to 21, 67-74 when licenses expire in 23 section 56, Code Criminal Procedure, not applicable to 45, 100 NON-RESIDENTS: license to 93 NOTICE: forbidding sale to habitual drinker 36 form of 175 sale after notice, penalty for 37 innkeepers required to pest 138 OATH OF OFFICE, 18, 86: by whom to be administered 86 forfeiture for failure to take 86 effect of failure to file ... 87 form of, for commissioner 159 OFFENSE: intoxication an 35, 99 to sell to intoxicated person 100 OFFENSES: what are, and are not criminal 97 misdemeanors when caught in act of committing 98 OFFICE: title to, may be denied 87 OFFICERS: duties of 33, 34, 42 may employ attorneys 87 official character of, how proved 103 INDEX. 199 ORANGE COUNTY: page. disposition of excise moneys in 53 ORDINANCES: effect of, on general laws 120 OVERSEERS OF THE POOR: to recover penalty for failure to keep accommodations 30 duties of, in case of habitual drinker 36 to give notice in certain cases 36 sales after notice, unlawful 36 to prosecute for penalties 38, 102 may employ an attorney 103 powers and duties of 78-80 what penalties to sue for 78 when may discontinue action 105 when may be coerced 105 PARENT: may maintain action against seller 36, 50 PAUPER: unlawful to sell to 87 PENALTIES AND FORFEITURES: who may prosecute for 38, 40, 102 when recovered, how disposed of 38 for selling to Indian, apprentice or minor 33 for taking security for liquors trusted 31 for failure of hotel keeper to keep accommodations 30 for failure of hotel keeper to put up sign 31 for selling without license to be drank on the premises 32 for selling by measure without a license 32 for store-keeper's selling to be drank on the premises 32 for public intoxication 35 for failure to arrest intoxicated person 35 for failure of magistrate to entertain complaint 35 for selling to intoxicated person 36 for selling to habitual drinker when forbidden 36 for adulterating imported liquors and selling same 40 for corporations employing intemperate persons 41 for failure to take oath by commissioners 86 collection of, not barred by a conviction 107 husband liable to, for sale by wife 108 for breach of bond 39, 110 200 INDEX. PENALTIES AND FORFEITURES — ( Continued). rAGE . conviction for any offense, forfeits license 39 for public selling on Sunday 142 PENITENTIARIES: use of liquor in , . . 46 PHYSICIANS: practicing while intoxicated, a crime 49 POLICEMAN: duties of 33, 34, 42 POLLING PLACE: not to be where liquor is sold 46 POOR: surplus moneys, how disposed of 46 POOR-HOUSES: use of liquors in 46 POUGHKEEPSIE: commissioners in, how appointed 18 special statutes for , 54 PRACTICE: effect of failure to take oath of office and file bond 87 title to office may be denied 87 when burden of proof on defendant 106 PRESIDENT: of village cannot be commissioner of excise 17 PROOF: must conform to offense charged - 107 when variance is immaterial 114 questions arising under 119 as to official character 103 when burden of, is on defendant 106, 107 to be furnished officer 104 PRISONS: use of liquor in 46 PROTECTORIES: use of liquor in 46 PUNISHMENT : for intoxication 34. 35 for railroad employee intoxicated 44, 45 kind of, to be imposed 99 INDEX. 201 RAILROAD: ™ge. employees of, punishment for intoxication 44, 45 penalty for employing intemperate persons 41 RECORD: to be kept by board of excise 24, 27 what to contain ? 24 to be kept public, and where 24, 27 REPEAL OF STATUTES, 28, 121. RICHMOND COUNTY: special act 58 ROCHESTER: special act 58 when licenses expire in 23 SAFE: in office of innkeeper, and effect of having 137, 146 SALARY: of commissioners in cities 19 of commissioners in towns 17, 43 SALE: of certain adulterated articles a misdemeanor 40, 49, 50 of property belonging to guest 139, 140 SALOONS: children not to be allowed in 47 duties and liabilities of keepers of 80-83 SECURITIES: taken by hotel keepers for trusted liquors void 31 SERVICE: on board of excise, how made 89 SESSIONS: duties of, on notice of conviction 39 SHERIFF: duties of 33, 34, 42 fees of, how paid 88 SIGNS: to be put up by hotel keepers 31 penalty for failure 31 SPECIAL ACTS: not affected by general laws 18, 121 202 INDEX. SPECIAL SESSIONS: PAGE. jurisdiction of 45, 95 exclusive jurisdiction, when 95 SPECIAL STATUTES: for Allegany county 66 for Brooklyn 21, 60 for Haverstraw „ 63 for Kingston 53 forLockport 57 for Medina 64 for Newburgh 52 for New York 21, 67-74 for Orange county 53 for Poughkeepsie 54 for Richmond county 66 for Rochester 58 for Troy 59 forYonkers 56 STATUTES: in relation to excise 17-51 in relation to innkeepers 137-143 STORE-KEEPERS: license to, what to contain 31 to be men of good moral character 31 to execute a bond 31 form of bond 163 penalty for selling to be drank on premises 32 duties and liabilities of, etc 80-83 SUMMONS: indorsement on 105 SUNDAY: not lawful to sell liquors on 37 penalty for violation 37 public selling forbidden on 141 prepared tobacco not to be sold on, where liquor sold 142 SUPERVISORS: cannot be commissioners of excise 17 board of, to audit bills 88 TAVERN. (See Hotel, Hotel Keeper, Innkeeper.) INDEX. 203 TIME : pa ee. when sales are prohibited 37, 42 TOWN AUDITORS: to audit bills 88 TOWN CLERK: cannot be commissioner of excise 17 TOWN MEETINGS : not lawful to sell liquors at 37 commissioners to be elected at 17, 75 TOWNS: commissioners of excise in, how elected 17 commissioners in, how appointed 18, 85 bills against, how paid 88 TREASURER, COUNTY: to receive penalties 38 TROY: special act 59 TRUSTEE OF VILLAGE: cannot be commissioner of excise 17 UNCONSTITUTIONAL : part of section 23, chapter 1, is" 116 VACANCIES: in boards of excise, how filled 18, 85 VAGRANTS: children in certain company or places are 48 who are, and how disposed of 48 VILLAGES: have no separate board of excise 44 not to hold election where liquors are sold 46 only applies in places of 10,000 inhabitants 46 (See Section 19, Chaptek 570, 1872.) WARRANTS: to be issued by magistrates 34 no arrest without in New York and Brooklyn except, etc 21 arrest without 33, 34 arrest without, by village officers 74 204 INDEX. WIFE: page. may maintain action against liquor seller 30, 50 proof must be'submitted by 36 YONKERS: special act 50 THE GREAT WORK COMPLETED! NEW YORK CITATIONS, A COMPLETE TABLE OF ALL THE OASES AS CITED, AFFIRMED, REVISED, or MODIFIED IN ALL THE REPORTS OF THE STATE OF NEW YORK, from the earliest period to the present time. OVER 30,000 IN XUMBEK. By I IIEODORE CONNOLY, Of the New York Bar. One Volume, Royal Octavo. Price reduced to 86.50 net. BENEDICT'S SEW YORK CIVIL ANE CRIMINAL JUSTICE. A Summary of the Jurisdiction, Powers and Duties of Justices of the Peace in the State of New York ; also, a Practical Treatise on their Jurisdiction, Duties and Authority in Criminal Cases, together with a Great Variety of Forms. J3 Y JOSEPH BENEDICT, Counselor at Law. Eighth Edition, 1883. 2 Large Vols., Octavo. 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