People v. Jefferson, 101 N. Y. 19, affirming 28 Hun, 52 Unnecessary to negative exceptions favoring certain persons besides hotelkeepers, who might sell liquor to be drunk on premises, etc., contained in L. 1869, ch. 856, sec. 4, in indictment for sale of liquors to be drunk on premises without license as an inn, tavern or hotelkeeper under L. 1857 as thus amended or as amended by L. 1870, ch. 175. Cited, People v. Charbineau, 115 N. Y. 433 People v. O'Donnell, 46 Hun, 358 People v. McIntosh, 5 N. Y. Cr. 38 People v. O'Donnell, 46 Hun, 361 People v. Haren, 35 Misc. 590 People v. Bates, 61 App. Div. 559 People v. Crotty, 22 App. Div. 77 People v. Brede, April, 1897, unreported Matter of Lyman v. True Friends Social and Literary Circle, N. Y. L. J., People v. Jones et al., 54 Barb. 311 Excise commissioners held criminally liable for corruptly granting a tavern keeper's license for a place which they knew did not comply with L. 1857 and have "at least three spare beds, and the necessary bedding for the accommodation of travelers." Duties of excise commissioners and requirements of "hotels" considered. Cited, Peo. ex rel. Beller v. Wright, 3 Hun, 306 People v. Meakim, 61 Hun, 327 In re Bloomingdale, 38 N. Y. Supp. 162 People v. Krank, 46 Hun, 632, reversed, 110 N. Y. 488. Variance between proof of sale on Sunday, July 4th, without a license instead of July 3d as alleged, immaterial, because precise time was not a material ingredient. Where an act constitutes two different offenses, punishable differently under different portions of a statute, which portion thereof shall prevail; e. g., that prohibiting the sale of liquor without license or that prohibiting unlicensed persons from selling on Sunday? People v. Krank, 110 N. Y. 488, reversing 46 Hun, 632 Time is not essence of crime of selling liquor without license under L. 1857, as amended L. 1869, and it is unnecessary to establish that the offense charged was committed on the very day laid in the indictment. The fact that special provision is made punishing sale of liquor on Sunday whether accused has license or not, L. 1873, ch. 549, sec. 21, does not make general prohibition of sale without license inapplicable. One selling on Sunday without license would be liable to punishment under either provision but conviction under one would bar prosecution under other. Cited, People v. Polhamus, 8 App. Div. 133 People v. Krushaw, 31 How. Pr. 344 Constitutionality of Metropolitan Police Bill denied. Peo. ex rel. Kennedy v. Lahr, 71 Hun, 271 Eligibility of supervisor of city ward to office of excise commissioner under L. 1892, ch. 401, sec. 3. People v. Lavin, 4 N. Y. Cr. 547 Variance between indictment charging sale on Sunday, May 18th, and proof showing sale April 20th-fatal. Cited, People v. Krank, 46 Hun, 632 People v. Luhrs, 7 Misc. 503, affirmed, 79 Hun, 415 The fact that one is acting as the agent of an incorporated club or association does not exempt him from criminal prosecution for selling liquors without a license to members of the club. Such clubs are subject to the police power just as individuals are. A violator can have no excuse or plea of ignorance to avoid the punishment that is fixed by legislative authority. Cited, People v. Adelphi Club, 149 N. Y. 5 People v. Lyon, 27 Hun, 180 The provision of L. 1857, ch. 628, that "whenever any person is seen to drink in any such shop or house, outhouse, yard or garden belonging thereto, any spirituous liquors or wines, forbidden to be drunk therein, it shall be prima facie evidence that such spirituous liquor or wines were sold by the occupant of such premises or his agent with the intent that the same should be drunk therein," is unconstitutional, because the defendant is entitled to have the real question at issue, namely, the question of intent determined by a jury from their own judgment upon facts legally given in evidence. If the Legislature can declare that a certain fact is prima facie evidence of guilt, so that a jury must convict unless the defendant explains away such evidence, it would seem to follow that it might declare what should be conclusive evidence of guilt. People v. McDowell, 70 Hun, 1 License granted by de facto excise commissioner protects holder. Peo. ex rel. Silkins v. McGlynn, 62 Hun, 237, affirmed, 131 N. Y. 602 A license may be revoked on breach of the conditions subject to which it was taken, but not without proof other than an assurance of guilt by men of good character where the accused denies guilt. The decision of the Excise Board is subject to review. People v. McIntosh, 5 N. Y. Crim. 38 A complaint positively averring that defendant kept saloon and sold liquor there, and as complainant believed without a license, is sufficient to sustain the warrant. When an act is prohibited with an exception, the exception is matter of defense." Cited, Matter of Lyman v. True Friends Social and Literary Circle, N. Y. L. J., People v. Maxwell, 83 Hun, 157 Defendant prosecuted for selling liquor without license must show his license if he has one. Saving clause of L. 1892 relative to repeal of existing laws under which defendants are prosecuted and punished is not ex post facto. People v. Meakim, 61 Hun, 327, affirmed, 133 N. Y. 214 In criminal as in civil cases a defendant must be held to the position he assumes. Acquittal because of variance not a bar to second indictment and defendant not then allowed to claim there was no variance. People v. Meakim, 133 N. Y. 214, affirming 61 Hun, 327 Excise commissioners who neglect their duties by not acting upon charges laid before them under L. 1870, ch. 175, sec. 8, as amended by L. 1873, ch. 549, sec. 8, are punishable criminally under sec. 117 of the Penal Code, as well as civilly. One proceeding is not a bar to the other. Peo. ex rel. Welling v. Meakim, 56 Hun, 626, affirmed, 123 N. Y. 660 Mandamus on application of a citizen to compel excise board to decide complaint against saloon keeper where their decision is unreasonably delayed. Cited, People v. Meakim, 61 Hun, 327 People v. Meakim, 133 N. Y. 220 Matter of Lyman v. Erie County Athletic Club, 46 App. Div. 387 Peo. ex rel. Welling v. Meakim, 123 N. Y. 660, affirming 56 Hun, 626 Duty of excise commissioners to act reasonably promptly upon charges preferred in citizen's proceeding to cancel license. See People v. Meakim, 133 N. Y. 214. Mandamus will lie to compel determination. People v. Meyers, 95 N. Y. 223 Conviction of defendant's barkeeper under L. 1873, ch. 549, for selling liquor on Sunday, forfeited ipso facto defendant's license issued for the premises where the violation occurred irrespective of independent remedies for cancellation of certificate. "The act casts upon the licensee the necessity, in order to protect himself in the enjoyment of the license, of seeing to it that no violation shall be committed on the licensed premises. It is not left open to the licensee to claim, in case of the conviction of another for such violation, that it was committed without his knowledge or consent. The words 'or at the place licensed' were obviously inserted to meet this present case." Jurisdiction in proceedings to revoke a license does not depend upon the fact of a prior conviction. "It is an independent remedy "—it supplements the provision in the prior clause, and operates as an additional restraint upon the license. Cited Matter of Schomaker, 15 Misc. 648 People v. Woodman, 3 N. Y. Supp. 926 Peo. ex rel. Matthews v. Woodman, 4 N. Y. Supp. 532 Matter of Lyman v. Texter, 59 App. Div. 217 Peo. ex rel. McNutt v. Mills, 91 Hun, 142 Excise commissioners in the exercise of the discretion as to whom and what places they will license may refuse license because the applicant is not of good moral character and because the place kept by him is frequented by disorderly women. People ex rel. Hoy v. Mills, 91 Hun, 144 Excise commissioners may refuse license because sufficient places are already licensed in neighborhood and such refusal will be sustained unless ground assigned is not the real reason therefor. People v. Morris, 13 Wend. 329 Statute forbidding grocers to sell liquor to be drunk on the premises applies within incorporated municipalities same as throughout the State. People ex rel. Stiner v. Morrison, 78 N. Y. 84 General provisions L. 1870, ch. 175, not repealed or superseded by New York City Charter, L. 1873, ch. 335, sec. 25, providing for appointment of city officers and its amendment by L. 1873, ch. 549, and L. 1874, ch. 642, and clearly indicative of the intention of the legislature not to interfere with general system or place New York City upon any different footing from other cities. People v. Mullins, 5 App. Div. 172 All parties to a misdemeanor are principals. Record of conviction of bartender not admissible in evidence against his employer, being prosecuted for the same offense. Same true of record of conviction of another bartender for another offense committed at the same time. Same true of depositions taken before magistrate in examination of said bartender. People v. Murphy, 5 Park. Cr. 130 Hotel is none the less one because it is kept without license. Any person whether licensed or not was punishable under L. 1857 for selling liquor on election day within one-quarter mile of the polls. Peo. ex rel. Babcock v. Murray, 70 N. Y. 521, reversing 8 Hun, 579 L. 1870, ch. 175, sec. 2, does not legally authorize verbal appointment of excise commissioners. Peo. ex rel. Cairns v. Murray, 13 Misc. 522, reversed, 148 N. Y. 171 Purpose of restricting traffic near schools and churches and reason for exceptions. Held that construction of a church or school near a saloon is with notice of latter's established rights. Peo. ex rel. Cairns v. Murray, 148 N. Y. 171, reversing 13 Misc. 522 What constitutes a building used exclusively as a schoolhouse. Traffic near schoolhouse under exception contained in L. 1893, ch. 480, sec. 43, a personal privilege. Purpose of exception. Cited, Peo. ex rel. Clausen v. Murray, 16 Misc. 398 Matter of Kessler v. Cashin, 28 Misc. 336 Matter of Lyman v. Monahan, 28 Misc. 408 Matter of Lyman v. Lazarowitz, N. Y. L. J., June 7, 1899 Peo. ex rel. Clausen v. Murray, 16 Misc. 398 Obvious policy of statute restricting traffic near school. Schoolhouse and saloon on same street but entrance to latter on another street. Building occupied exclusively as a schoolhouse by Christian Brothers. "Additional use incidental only and no way inconsistent with its primary and paramount use as a schoolhouse-under control of school authorities and instrumental to the end of imparting instruction;" and so trivial and insignificant as not to detract from the pervading character of the building as a resort for learning." Cited, Matter of Piace v. Matty, 27 App. Div. 561 Peo. ex rel. Connelly v. Murray, 38 N. Y. Supp. 177 An excise board demanding the surrender of an outstanding retailer's license before granting a license for a new place in a city where 6,500 licenses are already in force may also decline outright to issue a license for a particular place because immediate public necessity or convenience does not demand it. Cited, Matter of Schomaker, 15 Misc. 648 Peo. ex rel. Macy v. Murray, 5 App. Div. 66 Saloon traffic near school, on fifth floor of department store. "Accessibility not the only thing aimed at. It was the vicinity, the neighborhood, the surroundings of the school which the statute was enacted to protect." Locked door still an entrance and the fact that the proprietor promised to keep it locked or fact that his license could be revoked for breach of faith does not permit excise board to disregard the plain statute. Cited, Matter of Lyman v. Reynolds Bros., N. Y. L. J., Dec. 19, 1900 Peo. ex rel. Redfield v. Murray, 87 Hun, 393, affirmed, 147 N. Y. 117 Cited, Matter of Schomaker, 15 Misc. 648 Matter of Bloomingdale, 38 N. Y. Supp. 168 Peo. ex rel. Schulz v. Murray, 2 App. Div. 607 Refusal of excise commissioner to grant license for place which until six weeks prior to application had been disorderly sustained notwithstanding proof that the new applicant was of good moral character and intended to run a hotel for men only. |