lawfully carried on in such premises on March 23, 1896, is forfeited, where it appears that, although such traffic was lawfully carried on in such premises on March 23, 1896, the license expired by operation of law June 30, 1896, and that no liquor tax certificate was granted for the traffic in liquors upon the said premises until December, 1897, the actual traffic in liquors upon the said premises being suspended between June 30, 1896, and January 1, 1898.

The mere fact that the fixtures used in the conduct of the business in this place were not removed, and that the person who had owned a chattel mortgage on such fixtures had foreclosed the mortgage and had been in possession of the premises during the period when no business was carried on, does not constitute a continuance of the business such as would prevent the surrender of the privilege to conduct the liquor business upon such premises; nor does the intention of the parties who held the lease, as to the future use of the premises, constitute a continuance of the business.

APPEAL by John Fuhrmann from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of August, 1898, canceling the liquor tax certificate issued to the said John Fuhrmann.

Moses Weinman, for the appellant.

Alfred R. Page, for the respondent.

INGRAHAM, J.: The only question involved upon this appeal is whether the premises upon which this defendant proposed to carry on the liquor business was within the provision contained in subdivision 2 of section 24 of the Liquor Tax Law (Chap. 112, Laws of 1896 as amended by chap. 312 of the Laws of 1897). The appellant applied for a liquor tax certificate, stating in his application that traffic in liquors was actually carried on in the premises named on March 23, 1896, and that said premises had been occupied continuously for such traffic since 1888. It appeared that in 1896 George Hahn received a license to traffic in liquors upon said premises, which license expired by operation of law June 30, 1896; that no liquor tax certificate was granted for the traffic in liquors upon the said premises until December, 1897, and that the actual traffic in liquors was suspended upon the said premises between the 30th of June, 1896, and January 1, 1898. No liquor tax certificate having been issued for the conduct of the liquor business upon such premises

during that period, the traffic in liquors thereupon was illegal. The premises in question were within 200 feet of a building used exclusively as a schoolhouse; and under section 24 of the Liquor Tax Law the traffic in liquors cannot be permitted in said premises unless such traffic was actually and lawfully carried on in said premises on the 23d of March, 1896. If on the 23d day of March, 1896, this place was lawfully occupied for such business, the appellant was entitled to a liquor tax certificate, unless such traffic in liquor were subsequently abandoned. Then such abandonment worked a forfeiture of the privilege conferred by the statute. That question was presented to this court in the fourth department in People ex rel. Bagley v. Hamilton (25 App. Div. 428). It was there held that where "the business of one proprietor is closed up and no resumption thereof attempted by his successor for sixty days, we think that, within the spirit of the law, the privilege which it grants must be regarded as surrendered." We think that case presents the correct construction of the act and that it is authority for the determination arrived at by the court below. The mere fact that the fixtures used in the conduct of the business of this place were not removed, and that the person who had owned a chattel mortgage on such fixtures had foreclosed the mortgage and had been in possession of the premises during the period when no business was carried on, was not a continuance of the business which would prevent the surrender of the privilege to conduct the liquor business upon such premises. The business thus was actually suspended for a period exceeding eighteen months. During that time no traffic of liquor could lawfully be carried on in those premises as no liquor tax had been paid under which such business could have been conducted. There was no claim that liquor was actually sold, or that any business was actually conducted on the premises during this period. The intention of the parties who held the lease as to the future use of the premises did not constitute a continuance of the business.

We think, therefore, that the order appealed from was right and should be affirmed, with costs.

VAN BRUNT, P. J., PATTERSON, O'BRIEN and MCLAUGHLIN, JJ. concurred.

Order affirmed, with costs.

Supreme Court, Kings Special Term, November, 1898. Reported 25 Misc. 213.

Matter of the Application of WILLIAM BRIDGE for an Order Revok ing and Cancelling the Certificate of License to Traffic in Liquors issued to GEORGE MOHRMANN.

1. Liquor Tax Law-Summary revocation of certificate for material false statement.

Where the petition of a citizen, and its supporting affidavits, conclusively show the falsity of a material statement made in an application for a liquor tax certificate, issued in August, 1898, relative to the prior procurement of the necessary consents of neighboring owners, and the circumstances indicate that the real facts were intentionally withheld in order to obtain the certificate, the latter will be revoked summarily, without the intervention of a referee to take testimony and report upon certain issues raised by an answer, interposed in the form of a pleading in an action.

2. Same-Exemption from consents lost by disuse of premises.

The exemption, from the necessity of procuring such consents, given to persons who were licensed to traffic in liquor when the Liquor Tax Law went into effect, is lost by the subsequent discontinuance of the business and the abandonment of the premises for such use.

PETITION by William Bridge, a citizen, for an order revoking and cancelling the liquor tax certificate, issued to George Mohrmann, by the deputy commissioner of the borough of Brooklyn, city of New York, on the ground that material statements in the application of the holder thereof were false, and that he was not entitled to receive and is not entitled to hold such certificate.

George W. Van Slyck, for petitioner.

John M. Ward, for respondent.

GARRETSON, J. The allegations of the petition are denied, in part, by answer interposed in form as a pleading in an action, and the respondent asks that a referee be appointed to take testimony and report the evidence to the court. The Liquor Tax Law, § 28, subd. 2, as amended by chap. 312, Laws of 1897. This course is not deemed necessary for the reason that there was served with the petition four affidavits which fully sustain the allegations of the petition, and no statement of fact therein

set forth is controverted by the affidavit of the respondent also submitted hereon.

This proceeding is instituted to have revoked and cancelled a liquor tax certificate issued on August 20, 1898, by the deputy commissioner of excise for the borough of Brooklyn in the city of New York, which authorized the respondent to conduct the business of trafficking in liquors to be drunk upon the premises at No. 20 Elm place in said borough, upon the ground that a material statement made in the respondent's application for the certificate is false, viz., that there were but three buildings occupied exclusively as dwellings, the nearest entrance to which is within two hundred feet, measured in a straight line, of the nearest entrance to the premises where the traffic in liquors was intended to be carried on. Id.

The proofs quite satisfactorily show that such statement was false when so made, and the circumstances tend to indicate that it was known so to be at the time, and that the facts were intentionally withheld, to obtain the certificate, which otherwise, the respondent could not have obtained.

The statement is material, for the commissioner is bound thereby, and has no discretion. People ex rel Belden Club v. Hilliard, 28 App. Div. 140.

In addition to three dwellings mentioned in the application for the certificate (as to two of which the respondent claims that he has secured valid consents), it is conclusively proven that there were at least seven other buildings occupied exclusively as dwellings, the nearest entrance to which, is within two hundred feet, measured in a straight line, of the nearest entrance to the premises No. 20 Elm place, as to which no mention is made in the application. It, therefore, appears that of the total number of ten dwellings, the respondent has consents as to two instead of seven, the required two-thirds. Even if the petitioner gave consent as to four of the seven, as claimed (which however is not established) the respondent has still failed to secure a sufficient number of consents. These four consents, if, in fact, given, were not made a part of the application, and they could not be made effective by filing them with the commissioner after the issuance of the certificate. Inasmuch as the commissioner is bound by the statement in the application, the applicant should also be. It was upon the representation of its truthfulness that the certificate was issued.

The further statement made in the application that the premises were occupied for such traffic from 1882 until March, 1897, is of no avail to the respondent. The exemption from the requirements of the statute as to consents is lost by a subsequent discontinuance of the business and the abandonment of the premises for such use. Matter of Ritchie, 18 Misc. Rep. 341; People ex rel. Sweeney v. Lammerts, id. 343; affirmed, 14 App. Div. 628.

The measurements were properly taken in a straight line, from point to point, as upon the radius of a circle of which the nearest entrance of the premises where the business was to be carried on, is the center, disregarding all obstructions in its course. The Liquor Tax Law, § 17, subd. 8, as amended by chap. 312, Laws 1897; Matter of Ruland, 21 Misc. Rep. 504. The prayer of the petitioner is granted.

Petition granted.

Supreme Court, Kings Special Term, November, 1898. Reported. 25 Misc. 217.

THE PEOPLE ex rel. ERNST ОCHS, Relator, v. HENRY H. LYMAN, as Commissioner, etc., Respondent.

Liquor Tax Law-A conviction does not cut off the right to a rebate for the tax of the ensuing year-Procedure to procure rebate.

The conviction, on April 26, 1898, of the holder of a liquor tax certificate of the offense of selling liquor on Sunday, does not affect the right of his assignee to recover the rebate of a tax paid, on April 25, 1898, by the same person for a new certificate, which would not become operative until May 1, 1898, and which was surrendered at the earliest opportunity, no business having been done under it.

Proper method of procuring the rebate discussed.

MOTION for a peremptory writ of mandamus to require the respondent to pay to the relator, as assignee of the liquor tax certificate, the full rebate of the tax paid by one Joseph Palevski therefor on April 25, 1898, and which authorized Palevski to traffic in liquors for the year commencing May 1, 1898.

The respondent opposed on the ground that it appeared from the motion papers that on April 26, 1898, Palevski was convicted of the offense of selling liquor on Sunday.

For further facts, see opinion.