application in respect to consents of owners of buildings occupied as dwellings within two hundred feet of the location of the place where the traffic in liquor was to be carried on, are false.

In October, 1896, said Riley procured a liquor tax certificate to keep a saloon at the premises mentioned in the application for the present certificate and carried on business thereunder until the one now in question was issued on or about May 15, 1897. At the time when he procured his first certificate there were four buildings used exclusively as residences within the prescribed limit of two hundred feet from the nearest entrance to the building where he proposed to carry on his business and Riley obtained the necessary consents. This number of buildings continued without change until just before the date when he made application for the last certificate. He was unable to obtain from the owners of these buildings the requisite number of consents for his second certificate and thereupon five structures were drawn and placed upon a piece of land within the prescribed dis tance, from the owner or owners of which consents were obtained and used upon the application for the last certificate. These structures were built somewhere else and drawn upon the land in question. They had no foundations and were of a most temporary and unsubstantial character. Riley in various ways, directly and indirectly, was a party to bringing and placing them upon the land and filling them with occupants. It is claimed by the applicants that they were not "buildings occupied exclusively for a dwelling," within the meaning of the statute, but that they were sham buildings constructed and placed there for the purpose of producing necessary consents and really to avoid the provisions of the statute. Without, perhaps, admitting all that is claimed by the applicants upon this question, it still was not at all seriously claimed by counsel for Riley upon the argument that the consents from and in behalf of said buildings should be legally counted or considered for the purpose of sustaining the certificate.

The written application made by Riley for his certificate treated and represented these buildings as buildings occupied for dwellings within the meaning of the statute, and in accordance with the provisions of law he filed simultaneously with his application a consent covering them. It is claimed by the applicants, and again (except for the reason hereinafter considered) not

controverted by Riley, that the application and purported consents filed therewith constituted, under the various provisions of the Liquor Tax Law, a false statement, for which the certificate may be, in these proceedings, canceled and revoked.

The reason above referred to and now urged why such law and penalty is not applicable to this case is as follows: Riley, as above stated, in 1896 obtained the necessary consents to have issued to him his first certificate, and it is to be assumed that those consents were in the ordinary legal form. Intermediate that time and the date of his application for the second certificate subdivision 8, section 17 of the Liquor Tax Law covering this subject had been amended by adding the provisions (Laws 1897, chapter 312): "Whenever the consent required by this section shall have been obtained and filed as herein provided, unless the same be given for a limited term, no further or other consent for trafficking in liquor on such premises shall be required so long as such premises shall be continuously occupied for such traffic." It is urged that this provision just quoted exempted Riley from the necessity of obtaining any consents upon his last application, and that, therefore, although he did attempt to obtain them, and did base an application on them, still if they were unnecessary and he was entitled to a certificate without them, he should not be charged with any offense in respect to them, or his certificate. canceled for the reasons hereinbefore set forth. This contention seems to me to involve mainly the question whether the amendment above quoted was retroactive and covered consents obtained before it was passed. If it was and did so do, then the defendant's argument would seem to be well founded, but I do not believe such to be the case. While it rested entirely with the legislature to give or not to give the inhabitants of surrounding dwellings a voice in deciding whether a liquor tax certificate should be issued, and while very likely the giving to them of such voice would not grant a vested right which could not be taken away even by retroactive law, if the legislature saw fit, still the legislature having included this feature in the general law, it should not be held to be taken away certainly by retrospective law unless such intention clearly appeared. Prior to the passage of this amendment and at the time the first consents were obtained there was nothing in the statute with reference to consents "for a limited term," or to indicate that a person giving a consent to the issuing of one certificate was to be bound thereby

for all future time. It is true, as urged by the counsel for the defendant, that a law which compelled a person desiring to engage in this traffic, and having obtained his certificate, and having erected, perhaps, an expensive building, to take the risk of not being able to obtain consents for another certificate the succeeding year might result in hardship. But this seems to have been the law when the defendant obtained his first certifi cate, and it would now be somewhat severe in the opposite direction to so bind by the provisions of a retroactive statute those persons who gave their consents for a short time as to make the latter permanent and continuing.

The provisions of a statute are not to be treated as retrospective unless the intention to have them so is clearly indicated, and this applies as well to an amendment of as to an original statute. McMaster v. State, 103 N. Y. 547, 554; Matter of Miller, 110 id. 216; Ely v. Holton, 15 id. 595.

The application, therefore, is granted.

Application granted.

Supreme Court, Kings Special Term, October, 1897. Reported. 21 Misc. 504.

In the Matter of the Application of RULAND.

1. Liquor Tax Law-Consents-Dwellings occupied exclusively as such. The provisions of section 17 of the Liquor Tax Law, requiring an applicant for a license to procure the consent of the owners of "at least two-thirds" of the "building or buildings occupied exclusively for a dwelling" within a 200-foot limit of the proposed saloon, include, in making an estimate of the number of consents required, vacant dwellings designed exclusively for occupation as dwelling-houses and also a house where a dressmaker, displaying no sign, does sewing; but exclude a building used mainly as a grocery store.

2. Same-Measurement of 200-foot limit.

The statutory direction that the 200-foot limit shall be determined by measurement, "in a straight line," between those entrances of the saloon building and of the dwelling which are nearest together, means the length of a straight line, running from one entrance to another, regardless of the intervening obstructions.

APPLICATION by a citizen for the revocation of a liquor tax certificate, pursuant to section 28 of the Liquor Tax Law, on the

ground that it was falsely stated in the application that the owners of two-thirds of the dwellings, within two hundred feet, had consented.

C. A. Haviland, for petitioner.

J. W. Ridgway, opposed.

GAYNOR, J. There were at the time of the application for the liquor tax certificate twenty-one buildings ordinarily occupied exclusively for dwellings, within the two hundred feet limit. This leaves out 288 Greene avenue, which is the entrance to the rear of the building 378 Classon avenue, mainly used as a grocery store. It includes 386 Classon avenue, which is a boardinghouse. Two of said dwellings, viz., 401 and 370 Classon avenue, were vacant at the time of such application. The tenant of 303 Greene avenue is a dressmaker by trade, and does more or less sewing in the house, but has no sign out. This does not make it partly used for business. A mechanic may do work in his dwelling for others without making it no longer exclusively a dwelling. The statute requires the applicant to get the consent of the owners of "at least two-thirds" of the "building or build. ings occupied exclusively for a dwelling" within the two hundred feet limit. I construe this to include buildings constructed and meant for such exclusive occupation as dwellings. In the case of a new street or block of dwellings not yet let, I do not think the owners of such dwellings may be ignored by an applicant for a liquor tax certificate. That might enable such a certificate to be obtained without any such consent. I therefore include the vacant dwellings.

The applicant obtained the consent of the owners of thirteen of the said twenty-one dwellings, and thus falls short of twothirds. The grocery-store building has to be omitted.

The statute requires the two hundred feet limit to be deter mined by measurement "in a straight line" between the entrances of the saloon building and the dwelling which are nearest together. Measurements along the ground to the foot of the stoop, and then at an angle up the stoop to the front door, would in the case of two dwellings put them outside the two hundred feet limit. I do not think such a measurement is in a straight line within the meaning of the statute. I think the

actual length of a straight line stretched from one entrance to the other, regarded as running through all obstructions in the course, is the measurement required. The application has to be granted.

Application granted.

Supreme Court, Saratoga Special Term. Reported. 48 N. Y. Supp. 1035.

HENRY H. LYMAN V. JOHN MC GRIEVEY.

Nussbaum & Coughlin, for plaintiff.

Thomas O'Connor, J. W. Atkinson (J. W. Houghton of counsel) for defendant.

MCLAUGHLIN, J. The plaintiff is not entitled to maintain this action unless the population of the village of Waterford is shown by either the last State or Federal census. It is conceded that it is not shown by the former, but it is urged that it can be determined from the latter. Does the last United States census show the population of this village? The answer to this inquiry must be determined from the census and that alone. It cannot be determined from anything else; and resort cannot be had to other evidence for the purpose of determining it. This was the view taken and the construction given to the statute under consideration by this court in the case of People ex rel. Cramer v. Medbury, 17 Misc. Rep. 8. The printed compendium of the United States Census as sent out by the United States government does not show it. And, without now passing upon the question whether resort can be had to the schedules of records made by the enumerators for the purpose of showing that the printed compendium or official record is incorrect, I do, for the purpose of this case, consider these schedules, and have reached the conclusion that the population of this village is not thus shown. The returns of the enumerators offered in evidence is of the town of Waterford and not of the village of Waterford. They do not purport to be an enumeration of the village, and can only be considered such in the sense that the greater includes the less. The population of this village at the time the last Federal census