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Court of Appeals.

incident to and part of the business which might be carried on under it, then there was no violation of the law by anyone. This was the construction which the learned court below gave to the transaction, and, as we think, correctly. The testimony tended to show that there was a bar on the premises at the location named, but, when games were being played on the grounds, kegs of beer were placed at other localities; waiters would take the orders of spectators on the various stands through the grounds, and bring these orders to men in charge of the kegs, who would furnish them glasses of beer to be delivered to the customers; the waiters, on receiving the beer, would give checks or tickets for the beer taken, for which they were held responsible, and would collect money for their sales from the customers. The business of trafficking in liquors, authorized by the certificate in a park or upon public grounds where people congregate on special occasions, comprehends something more than the right to

REVOCATION OF LIQUOR-TAX CERTIFICATE,-continued.

limit, all houses intended for dwellings, though vacant at the time of the application should be included.

Matter of Ruland, 21 Misc. 504; 81 St. Rep. 561; 47 Supp. 561.

3. Uses of Buildings.

A church building, part of which is used for parochial school purposes and for meetings of societies close connected with the church, is still a building occupied exclusively as a church within the meaning of the statute, whether the society be of a sectarian or religious character.

Matter of Zinzow, 18 Misc. 653; 77 St. Rep. 714; 43 Supp. 714.
Matter of McCusker, 23 Misc. 446; 83 St. Rep. 281; 51 Supp. 281.

[Oct.

It is unnecessary in this state that a religious society should be incorporated; and a building rented exclusively for religious societies, holding services on Sunday and at stated times during the week, is a building used exclusively as a church within the meaning of the statute.

Matter of Lyman, 29 App. Div. 390; 86 St. Rep. 1145; 52 Supp. 1145.

So, also, is a Jewish Synagogue,the upper floor of which is used exclusively for religious services, and the lower for the Sunday school, the lower floor being also rented to lodges of Jewish fraternal orders.

Matter of McCusker,

App. Div.

....

; 96 St. Rep. 201; 62 Supp. 201.

The fact that persons not teachers live in a school building and pay their

....

1899]

Matter of Lyman.

sell over a bar at a designated point to such persons as go to the bar to be served. It fairly includes the right of the holder to distribute liquors in the glass by waiters to the patrons of the public place where the bar is located. The regulations of the place may provide for seating the public upon stands and other convenient places, and restrict them from access to the whole grounds. In such cases it would seem to be reasonable to assume that a person authorized to sell liquor to the public frequenting the place should have the right to reach the public from his bar on the grounds through waiters employed to distribute to the patrons of the place what he was authorized to sell and deliver. The license covers, not only the right to sell over a bar, but whatever else is fairly included in, or incidental to, the business authorized. The proof was therefore open to the construction given to it by the court below, and, since the facts have

REVOCATION OF LIQUOR-TAX CERTIFICATE,-continued.

board, being teachers by profession and members of a Christian Brotherhood, who own the building and conduct the school, and paying for their subsistence money which goes for the support of the school, the residence and maintenance of these teachers being an essential principle in the system of economy by which the school is supported and administered, does not change the character of the occupation of the building in such a way that it is not occupied as a schoolhouse.

People v. Murray, 5 App. Diy. 66; 38 Supp. 903.

The preponderating use of a house designed for and devoted to occupation as a dwelling determines its character. A building in which the occupant does washing for others is used exclusively as a dwelling within the meaning of the Liquor-Tax Law.

Matter of Lyman, 26 Misc. 568; 91 St. Rep. 488; 57 Supp. 488.

An addition to a business block used exclusively for dwelling purposes, having a separate street number and no communication with the block is a building occupied exclusively as a dwelling within the meaning of the law.

Matter of Lyman, 26 Misc. 568; 91 St. Rep. 488; 57 Supp. 488.

A house in which the occupant carries on dressmaking, where no sign is displayed, is still a house occupied exclusively as a dwelling, within the meaning of the Liquor-Tax Law. A mechanic may do work for others in his own house without destroying its character as a dwelling house.

Matter of Ruland, 21 Misc. 504; 81 St. Rep. 561; 47 Supp. 561. VII. N. Y. A. C.

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Court of Appeals.

all been found against the commissioner, no question of law is presented by the appeal.

But there is another, and, as it seems to me, very conclusive, answer to this appeal. We have seen that the privilege conferred by the certificate is a property right. The holder cannot be held to have forfeited this right until a case is made which answers all the requirements of the statute. The thirty-fourth section of the act defines the cases when the certificate is forfeited, in the following language: "Any corporation, association, co-partnership or person who shall violate the provisions of this act by trafficking in liquors contrary to the provisions of section eleven shall be guilty of a misdemeanor, and upon conviction therefor shall be punished by a fine of not more than five hundred dollars or by imprisonment

REVOCATION OF LIQUOR-TAX CERTIFICATE,-continued.

A building ten feet long, eight feet wide and seven feet high composed of rough unpainted boards with a single window and no chimney, and not lathed and plastered, occupied on the eve of the application for a liquortax certificate by a man of migratory habit, without family, is not a house occupied for dwelling purposes within the meaning of the Liquor-Tax Law. Matter of Lyman, 24 Misc. 552; 87 St. Rep. 577; 53 Supp. 577.

4. Consents.

A lessee of property cannot give the consent required of owners of property within the 200-foot limit, and a statement in the application that such lessee was agent of the owner, when he is simply lessee of the property, is a material false statement for which a certificate may be revoked.

Matter of Sherry, 25 Misc. 361; 89 St. Rep. 421; 55 Supp. 421.

[Oct.

The consent of the owners or authorized agents of vacant buildings within the prescribed limit, intended for dwellings, must be obtained.

Matter of Ruland, 21 Misc. 504; 81 St. Rep. 561; 47 Supp. 561. Additional consents, filed after the issuance of a certificate are not avail

able.

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

But where a licensee failed by mistake to obtain necessary consents, and filed them after proceeding to revoke certificate was begun, it was held that he could remedy the error, but that he must pay costs of proceeding.

Matter of Johnson, 18 Misc. 498; 75 St. Rep. 1028; 42 Supp. 1074.

1899]

Matter of Lyman.

in the county jail or penitentiary for a term of not more than one year, or by both such fine and imprisonment, and shall forfeit the liquor tax certificate, and be deprived of all rights and privileges thereunder, and of any right to a rebate of any portion of the tax paid thereon, and such certificate shall be surrendered to the officer who issued it, or to his successor in office, who shall immediately forward the same to the state commissioner of excise for cancelation." It is very evident that the forfeiture of the certificate is a part of the penalty for all infractions of the law comprehended in this section, and follows only in cases where there is a judgment of conviction. A party cannot be subjected to a forfeiture of his rights of property upon a summary investigation before a judge or magistrate, but only upon an indictment or criminal charge, conducted according to the rules governing criminal procedure, and after a conviction by a

REVOCATION OF LIQUOR-TAX CERTIFICATE,-continued.

5. Discontinuance.

The law prohibiting the carrying on of the traffic in liquor in a place within 200 feet of a building or buildings occupied exclusively for a dwelling or dwellings, unless the consents of the owners of two thirds of such buildings have been obtained, and within 200 feet of a building occupied exclusively as a church or schoolhouse, does not apply to places where the traffic in liquors was carried on on the 23d day of March, 1896.

Section 17 and 25, Liquor-Tax Law.

The exception as to the continuance of a business already in existence on the passages of the statute and amendments applies to the place, and not to the person of the licensee.

People v. Hamilton, 25 App. Div. 428; 83 St. Rep. 605; 49 Supp. 605; Rev'g 21 Misc. 375; 81 St. Rep. 190; 47 Supp. 190.

It applied to the person under chapter 480, Laws of 1893.
Matter of Place, 27 App. Div. 561; 84 St. Rep. 640; 50 Supp. 640.

A stipulation between the parties to a proceeding to revoke a certificate that respondent's place was regularly licensed at the time of passage of statute and that premises had been occupied continuously as saloon by sale of liquors since will be recognized and enforced by the courts, as to the parties making the same.

Matter of McCusker, 23 Misc. 446; 83 St. Rep. 281; 51 Supp. 281.
The courts have held that where the traffic in liquor has been discontin-

Court of Appeals.

jury. The power to fine and imprison, and to forfeit the cer tificate, depends upon the same condition, and that is the conviction of the offender. In this case the commissioner is seeking to do two things: (1) To convict some one of a criminal infraction of the law, before a judge at special term; and (2) to have the certificate of the brewing company forfeited, as the result of such conviction. It is quite clear that the statute does not authorize any such proceeding. The twenty-eighth section of the act provides simply for a proceeding to revoke a certificate granted to a party not entitled to receive or hold it, or upon false representations. Any other construction of the statute would present this anomaly: The holder of a certificate could be deprived of the right conferred by it, through a forfeiture summarily adjudged, and afterwards be acquitted by the jury upon a trial of the charge in the regular way, and thus we would have the case of a person suffering the penalty for an offense of which he was adjudged to be innocent. In this case there is no claim that the party procuring the certificate was not entitled to re

REVOCATION OF LIQUOR-TAX CERTIFICATE,-continued.

ued, no matter for how short a time, in a place where it was carried on on the 23d day of March, 1896, the right to continue the traffic in that place, if within the prohibited distance from a church or schoolhouse is lost; if within the prohibited distance from buildings used exclusively for dwellings, that it cannot be continued without obtaining the consents required by the law.

[Oct.

People v. Hamilton, 25 App. Div. 428; 83 St. Rep. 605; 49 Supp. 605.
Matter of Lyman, 29 App. Div. 390; 86 St. Rep. 1145; 52 Supp. 1145.
Matter of Lyman, 34 App. Div. 389; 88 St. Rep. 294; 54 Supp. 294.
Matter of Bridge, 36 App. Div. 533; 89 St. Rep. 54; 55 Supp. 54.
Matter of Lewis, 26 Misc. 532; 91 St. Rep. 676; 57 Supp. 676.

The right to continue business within prohibited distance without obtaining consents, at a place used on March 23, 1896 for such traffic, is lost by a discontinuance, voluntary or involuntary. Where respondent's place was destroyed by fire and immediately rebuilt, so that the business was not discontinued for more than three months, it was held that the right to continue without obtaining consents was lost.

Matter of Kessler, 28 Misc. 336; 93 St. Rep. 888; 59 Supp. 888.

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