The law also provides that there shall be filed with the application for the certificate a consent in writing that such traffic shall be carried on, on the premises for which the certificate is applied, executed by the owner of the premises or by his duly authorized agent. In this case the consent was executed by Gustav Koerner, who held the legal title to the premises where the traffic in liquors was to be carried on. If the lessee could execute such consent, Mr. Van Ausdall, who was the lessee, would not require the consent of Mr. Koerner, the holder of the legal title. I think the word "owner" has the same meaning where the law refers to the owner on whose premises the traffic is to be carried on and the owner of the buildings within two hundred feet thereof, and that such owner is one who has the legal title thereto.

In certain cases, the person holding the legal title could subject his tenant without the tenant's consent to the annoyance of an adjacent saloon. On the other hand, the tenant, if he had such right, could subject the property of his landlord against his landlord's protest to the possible depreciation of his property by the presence of a saloon. I can see many reasons why the consent of both landlord and tenant should be required; but, as the law now stands, I find it to be the legislative intent to require the consent only of the holder of the legal title to the buildings affected. The application must be granted, but without costs.

Application granted, without costs.

Supreme Court, Kings Special Term, November, 1898. Unreported.

In the Matter of the Petition of HENRY H. LYMAN to Revoke a Liquor Tax Certificate of the MALCOLM BREWING COMPANY.

A motion by State Commissioner Lyman to revoke and cancel a liquor tax certificate issued to the Malcolm Brewing Company was denied to-day by Justice Smith in Supreme Court, special term. The certificate authorized the defendant to traffic in liquors on the premises inside the ball grounds known as the Washington Park Base Ball Grounds, and the bar was to be situated on the north side of Third street, 350 feet east of Third

avenue. Not only was liquor sold here, but also three hundred feet away at the north end of the grand stand and separated by a gate and fence. Evidence was given that the brewing company sublet the privilege of selling liquors to one Henry Stevens.

Mead & Stranahan, for petitioner.

J. F. Bullwinkle, for respondent.

SMITH, J. S. C. I think that the violations of the provisions of the Liquor Tax Law which authorize the forfeiture of the certificate must be such a violation as would justify the criminal conviction of the holder of the tax certificate. The violation complained of was committed by one Stevens. Upon the undisputed evidence, I think Stevens was selling liquor by virtue of the certificate as agent of the Malcolm Brewing Company; but there is no evidence whatever that the sales complained of as a violation of the Liquor Tax Law were made with the consent or knowledge of the brewing company or by its authority. In the absence of such evidence, there could be no criminal conviction of the Malcolm Brewing Company for such violation.

Supreme Court, New York Special Term. Reported. N. Y. L. J. December 24, 1898.

HENRY H. LYMAN v. YOUNG MEN'S COSMOPOLITAN CLUB and FIDELITY AND DEPOSIT COMPANY OF MARYLAND.

SAME V. TRUE FRIENDS SOCIAL AND LITERARY CIRCLE and FIDELITY AND DEPOSIT COMPANY OF MARYLAND.

SAME V. UNITY LEAGUE and AMERICAN SURETY COMPANY.

LAWRENCE, J. While it is true that the only papers which can be used on a motion for a retaxation by the clerk are those which were before the clerk, as the plaintiff in obtaining the order to show cause herein used affidavits not before the clerk, to-wit, the joint affidavit of Messrs. Page and Sanford and the affidavit of Mr. Scott, each dated December 12, 1898, in which the ground on which the clerk adjusted the costs is stated, I think that the

defendants were entitled to read affidavits in reply. If this view, however, is erroneous there is enough before the court to show that the clerk's adjustment was correct, and the taxation in these cases should be affirmed on the merits, and the motion for a retaxation should be denied with $10 costs to the defendants, in each case. (See Comly v. The Mayor, etc., 1 Civil Pro. Rep. 317, per BARRETT, J.)

Settle the order on one day's notice.

County Court, Monroe County, December, 1898. Unreported.

PEOPLE OF THE STATE OF NEW YORK v. FERRANTO.

The indictment in this case charges the defendant with misdemeanor, committed by the sale of fermented and malt liquors on Sunday, December 6, 1896, at the city of Rochester. In the first count it is alleged that he did." offer and expose for sale fermented and malt liquors in quantities of less than five gallons at a time to be drunk on the premises, on the first day of the week commonly called Sunday, to divers ill-meaning and ill-disposed persons, said persons not being then and there guests of any hotel, contrary to the form of the statute, etc." The second count charges that the defendant on said day "did sell and deliver fermented and malt liquors to a person, said person

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not being then and there a guest of any hotel." In the third count it is alleged that the defendant did "give away and deliver fermented and malt liquors to divers ill-disposed and ill-meaning persons, said persons not being then and there guests of any hotel." The three counts refer to the same transaction.

The defendant demurs to the indictment, among other grounds because it does not contain a plain and concise statement of the act constituting the crime, as required by section 275 of the Code of Criminal Procedure.

Pomeroy P. Dickinson and Thomas E. White, for defendant.

George D. Forsyth, District Attorney, for the People.

SUTHERLAND, Co. J. It is claimed that this indictment is defective because it does not state the name of the purchaser to

whom the defendant is charged with selling liquor on the Sunday named herein, nor does it contain any allegation to the effect that the name of the purchaser was unknown to the grand jury. In an opinion written in 1837 by Chief Justice Nelson in Peo. v. Adams, 17 Wend. 475, the Supreme Court of this State said that in an indictment for selling liquor without a license it was not necessary to state the name of the purchaser. And this view was entertained by Chief Judge Hunt, of the Court of Appeals, in an opinion written in the case of Osgood v. The People, 39 N. Y. 449. But in the Osgood case it appears that the appeal to the Court of Appeals, upon the determination of which the opinion of Chief Judge Hunt was written, involved only the form of the judgment which was pronounced by the Court of Sessions and did not bring up for review the proceedings upon the trial. After Osgood was convicted in the Court of Sessions of Niagara county, a bill of exceptions was made, and, pursuant to the practice then followed, judgment upon the conviction was stayed until the decision of the Supreme Court should be had upon the exceptions; a writ of certiorari was then sued out and the proceedings upon the trial were reviewed and the conviction affirmed by the Supreme Court, which remitted the case to the Court of Sessions with directions to proceed and render judgment thereon. No appeal was taken by the defendant from the judgment of the Supreme Court affirming the conviction. The Court of Sessions, pursuant to the directions of the Supreme Court, rendered judg ment upon the verdict and from the judgment thus rendered a writ of error was sued out from the Supreme Court which affirmed the judgment that the Court of Sessions had pronounced, and the appeal to the Court of Appeals was from the last mentioned judgment of the Supreme Court. On the second hearing of the matter the Supreme Court had held that the writ of error brought up for review only the form of the judgment, which was held to be regular, Judge Clerke of the Court of Appeals wrote an opinion in which he stated that the accused was not entitled to two reviews of the same trial by the Supreme Court, and that the Supreme Court upon the second hearing were right in confining their attention merely to the form of the judgment, and that the merits of the conviction were not properly before the Court of Appeals for review. In this opinion of Clerke, J., it appears all the rest of the judges of the Court of Appeals concurred. It would seem, therefore, that the statement made by

Chief Judge Hunt to the effect that upon a prosecution for an unlawful sale of liquor the name of the purchaser is not a material ingredient in the description of the act constituting the offense, had not the controlling force which it would have, had the court considered that the merits of the conviction were brought up for review.

The Code of Criminal Procedure, § 275, states that an indictment must contain "a plain and concise statement of the act constituting the crime." And under an indictment for selling impure milk the general term of the third department, in 1889 (Peo. v. Burns, 53 Hun, 275), held that this provision of the Criminal Code makes it necessary to state the name of the pur chaser in such an indictment, or, if unknown, to allege such fact accordingly. The court says (at page 278): "The act sought to be charged was the sale of milk of a grade prohibited by said statute. To constitute such sale there must have been purchaser, and the defendant was entitled to be informed by the indictment who such purchaser was, so that he could be prepared to disprove such sale upon the trial, if it had not been made as alleged. The omission of such statement in the indictment constituted a material defect, as, without it the defendant would be liable to surprise upon the trial and quite likely to be prejudiced by such omission. The defect, therefore, must be regarded as matter of substance, and not merely of form, as it was the right of the defendant to be informed not merely of the crime charged, but also of the act which constituted it." In Peo. v. Stone, 84 Hun,130, the Supreme Court, General Term, fourth department, held that an indictment charging the defendant with offering for sale fertilizers below the grade required by statute, was fatally defective, among other reasons because it did not contain the name of the person to whom the fertilizer was offered to be sold nor any allegation that the name of such person was unknown to the grand jury. The court says (at page 137): "The doctrine of the cases cited seems to be conclusive upon this question, and to uphold the defendant's contention that the indictment was defective in not stating the name of the person or persons to whom the packages of fertilizer were offered for sale, or, if their names were not known, in alleging that fact." In People v. Greig, 59 Hun, 107, the defendant was the mayor of the city of Hudson and was indicted for engaging in the manufacture and sale of intoxicating liquors while holding such office, contrary, it seems, to the provi