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1899]

Matter of Lyman.

6. LIQUOR-TAX CERTIFICATE-REVOCATION-CONVICTION AS PREREQUISITE. Under the liquor-tax Law, § 34 as amended by Laws of 1897, chap. 312, which provides that, when a holder of a liquor-tax certificate carries on traffic in violation of statutes regulating it, he shall be guilty of a misdemeanor, and on conviction be fined or imprisoned, or both, and shall forfeit such certificate and be deprived of all rights thereunder, there can be no such forfeiture without a conviction by a jury in a criminal proceeding upon the charge on which the forfeiture is based.

Appeal from supreme court, appellate division, second depart

ment.

Petition by Henry H. Lyman, state commissioner of excise, against the Malcom Brewing Company, to revoke a liquor-tax certificate. The order of the Kings County Special Term denying the application having been affirmed by the appellate division (40 App. Div. 46; 91 St. Rep. 634; 57 N. Y. Supp. 634), the petitioner appeals. Affirmed.

REVOCATION Of Liquor-Tax Certificate,-continued.

The proceeding must be brought against the actual holder of the certificate.

Neiland v. McGrath, 29 Misc. 682; 96 St. Rep. 760; 62 Supp. 760.

Under the original act of 1896 citizens might file a protest against the issuance of a liquor-tax certificate, and the officer charged with the duty of issuing the same might determine by his own examination whether the requirements of the law had been complied with.

People v. Hoag, 11 App. Div. 74; 76 St. Rep. 886; 42 Supp. 886.

Under the original act, however, a citizen who filed such a protest was not barred from petitioning the court for a revocation of the certificate, if subsequently issued in spite of such protest.

Matter of Lyman, 23 Misc. 710; 87 St. Rep. 52; 53 Supp. 52.

By the amendment of 1897, section 17, this discretion is taken away, and a protest would be of no avail, were the application regular on its face. People v. Hilliard, 28 App. Div. 140; 84 St. Rep. 909; 50 Supp. 909.

As the petitioner must state the facts upon which revocation is asked, on appeal he cannot urge facts not stated in his petition.

Matter of Purdy, 40 App. Div. 133; 91 St. Rep. 629; 57 Supp. 629.

It is not necessary to serve a copy of the petition upon the person holding the certificate as collateral security. It is sufficient under the statute to serve on the one authorized to sell under it.

Matter of Lyman, 26 Misc. 300; 93 St. Rep. 985; 59 Supp. 985.

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S. B. Mead, for appellant.

J. F. Bullwinkel, for respondent.

O'BRIEN, J. The commissioner of excise filed a petition with the court, praying that the liquor-tax certificate issued by him under the statute to the Malcom Brewing Company, a corporation, be revoked and canceled on the ground that it had been forfeited by the acts of the company which were alleged in the petition. The court at special term denied the application, and the appellate division has affirmed the order.

The application to revoke the license was based upon an allegation that the person holding it sold liquor at more than one place on the premises described in the certificate, in violation of the statute. The company was authorized by the certificate to traffic in liquors at a place therein described in these words: "Inside Washington Park Baseball Grounds, north side of

REVOCATION OF LIQUOR-TAX CERTIFICATE,-continued.

An order to show cause under this section, returnable fifteen days after it is granted, cannot stand.

Moser v. Scheib, 16 App. Div. 379; 78 St. Rep. 1124; 44 Supp. 1124. Where all the parties except the certificate holder have been served with the petition and order to show cause, the proceedings as to those served may be adjourned and a new order on the original papers granted against the certificate holder, returnable on the day of such adjourned hearing, when not more than ten days thereafter.

c. Material Mis-statements.

Under section 17 of the liquor-tax law the applicant for a liquor-tax certificate is required to furnish a verified statement to the officer charged with the duty of issuing the certificate, showing that he is not prohibited under any provision of the law from receiving such certificate. If any of the statements required to be made by this section are false, the certificate may be revoked.

If the statement is material and false, it makes no difference whether it be made intentionally or not.

Matter of Fall, 26 Misc. 611; 91 St. Rep. 858; 57 Supp. 858, affirmed without opinion, 39 App. Div. 671.

In proceedings brought for the revocation and cancelation of liquor-tax

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Third street, three hundred and fifty feet east of Third avenue, Brooklyn." The misconduct alleged on the part of the company as the ground for revoking the certificate is that, on a day named, it sold two glasses of lager beer, to a person named, on another part of the grounds or park, and, as claimed, at another place, without having paid the tax for the permission to sell at that particular place. The application seems to be founded upon the theory that the delivery of any liquors by the company to visitors upon the grounds, except at the precise place designated in the certificate, was a violation of the penal provisions of the statute, and a legal cause for the revocation of the certificate. The company paid the tax on procuring the certificate, but the commissioner claims that this certificate thus procured has been forfeited because sales of beer were made upon the grounds by the holder at another place than that described therein. The sale of the lager beer at the other place, for which a forfeiture of the

REVOCATION OF LIQUOR-TAX CERTIFICATE,-continued.

certificates on the ground that material false statements had been made in the application, the courts have made the following rulings:

1. Measurements.

Chapter 112 of the Laws of 1896 prohibited traffic in liquor in any building on the same street and within 200 feet of a building occupied exclusively as a church or schoolhouse, the measurement to be taken from the nearest entrance of the church or schoolhouse to the center of the nearest entrance of the place in which the traffic was to be carried on (section 24, sub. 2). By chapter 312 of the laws of 1897, the law was amended, so as to provide that the measurements shall be taken in a straight line.

Under the original act it was held that the distance between entrances should be measured in the shortest feasible way that one could go from the entrance of a saloon to the entrance of a dwelling, not necessarily by sidewalks, but in an air line where practicable, and where a saloon is on the second floor of a building, the street entrance is the one from which the measurement must be made.

Matter of Underhill, 17 Misc. 19; 39 Supp. 575.

The amended statute requires the measurements to be made in a straight line between the entrance of the saloon building and the dwelling that are closest together, the line being regarded as running through all obstructions.

Court of Appeals.

license is claimed, appears to have been made to a special agent of the commissioner. The testimony upon which the court dismissed the proceedings disclosed substantially the following facts: The business of selling the beer on the grounds was carried on by one Stevens, to whom the company sold beer, and gave the use of the certificate. He owned the liquor, and had the profits of the business. Liquor-tax certificates, or the right to engage in the sale of liquors, constitute, under the present law, a species of property, transferable by the party procuring the same. Laws 1897, c. 312, § 27. The privilege or right which it confers upon the holder cannot be revoked, except in the manner and for the causes prescribed in the statute. The holder may invoke the general rules of law for the protection of property in any proceeding having for its object the forfeiture or destruction of the right which the certificate confers.

This suggests the inquiry as to how far the brewing company

REVOCATION OF LIQUOR-TAX CERTIFICATE,-continued.

Measurements along the ground to the foot of the stoop and then at an angle up the stoop to the front door are improper.

Matter of Ruland, 21 Misc. 504; 81 St. Rep. 561; 47 Supp. 561.
Matter of Lewis, 26 Misc. 532; 91 St. Rep. 676; 57 Supp. 676.
Matter of McCusker, 23 Misc. 446; 83 St. Rep. 281; 51 Supp. 281.

Matter of Bridge, 36 App. Div. 533; Aff'g 25 Misc. 213; 89 St. Rep. 54; 55 Supp. 54.

A door merely closed and locked is still an entrance.
People v. Murray, 5 App. Div. 66; 38 Supp. 903.

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A door once used as an entrance, but nailed up and permanently closed, is not an entrance within the meaning of the Liquor-Tax Law.

Matter of Purdy, 40 App. Div. 133; 91 St. Rep. 629; 57 Supp. 629.

Where a saloon is on the corner of two streets, if within 200 feet of a church or schoolhouse, the prohibition in the statute applies, although the entrance is on another street than that of the schoolhouse or church.

Matter of Zinzow, 18 Misc. 653; 77 St. Rep. 714; 43 Supp. 714.

A person having a license to sell in a building just outside the prescribed limits, cannot, by renting an adjoining building, within the prescribed limits and cutting an opening between them, become entitled to sell liquors in the buildings so united.

Matter of Place, 27 App. Div. 561; 85 St. Rep. 640; 50 Supp. 640.

1899]

Matter of Lyman.

or its property is liable for the acts of Stevens. It does not appear that the relation of principal and agent existed between them. The company permitted him to use the certificate to do business at a designated place, and in compliance with it. There is nothing in the record to show that it intended or authorized its use in any other than a lawful way. It may be that, for any violation of law committed by him at the place designated, the company or its property might be responsible. But if he started the liquor business at some other place, or at several other places, he would then be engaged in something wholly disconnected from the business which the certificate authorized. As to the business so disconnected, he was simply acting without license, and he alone, and not the company, is responsible for the consequences. On the other hand, if the delivery of the beer to the public on the ground where games of ball were being played, at places other than the precise location specified in the certificate, was an

REVOCATION OF LIQUOR-TAX CERTIFICATE,-continued.

2. Number of dwellings.

A false statement of the number of dwellings within 200 feet of the premises of an applicant for a liquor-tax certificate is not a material false statement within the meaning of section 28, because the law does not require the applicant to make such statement. The official charged with the duty of issuing the certificates cannot lay the foundation for false statements by inserting questions in the application not authorized by the statute.

Matter of Lyman, 23 Misc. 710; 87 St. Rep. 52; 53 Supp. 52.
People v. Hoag, 11 App. Div. 74; 76 St. Rep. 886; 42 Supp. 886.

Since the decision in the above case the law has been amended, so that the officer whose duty it is to issue the certificate is bound by the statements made in the application (amendment 1897, section 17). Under the amended law it is held that

A false statement as to the number of buildings within the 200-foot limit is material, because the commissioner is bound therby and has discretion (citing People v. Hilliard, 28 App. Div. 140; 84 St. Rep. 909; 50 Supp. 909).

Matter of Bridge, 25 Misc. 213; 89 St. Rep. 54; 55 Supp. 54; Aff'd 36 App. Div. 533.

In determining the number of dwelling houses within the prescribed

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