sold with licensee's permission or that she was not a member of his family, etc., not sufficient because unless the licensee is convicted there must be two convictions to warrant the revocation. Cited, Cullinan v. Burkard, 41 Misc. 325 Matter of Lyman v. Malcolm Brewing Co., 160 N. Y. 96 Peo. ex rel. Hopkins v. Commissioners, 4 Misc. 330 A declaration by an excise board that an application for a license has been refused in the exercise of their discretion after due consideration and deliberation on the merits will not be sustained upon judicial review where it appears that the excise commissioners have arbitrarily determined not to issue any licenses because they were elected not to issue them. Cited, Peo. ex rel. Muckle v. Board of Excise, 13 Misc. 537 Peo, ex rel. Kidd v. Commissioners, 25 N. Y. Supp. 873 "While local option does not exist in the strict meaning of that term in this State, there is a practical local option." If excise commissioners conclude that they will grant no licenses, their decision may not be reviewed. Peo. ex rel. Van Demark v. Commissioners of Excise, 7 Abb. Pr. 34 Mandamus will not lie to compel a Board of Excise to grant a license, especially after the expiration of the ten day session in which the statute of 1857 authorizes licenses to be issued, "The structure of modern statutes, and especially those on the subject of excise, creates a pressure upon the courts often difficult and embarrassing. The present law has been perhaps as much as any other the subject of reproach, even to the charge of absurdity in its provisions. The duty of the court, however, without regard to those complaints, will be best discharged by the attempt to give it such fair construction as a whole and in its several parts as shall be most consistent with the apparent intent of the Legislature, without reference to the hardships or the inconvenience in particular cases." Peo. ex rel. Watkins v. Commissioners, 4 Misc. 547 That portion of Excise Law of 1892 relative to local prohibition has reference to the system of voting for excise commissioners who should favor local prohibition. Although the last commissioner elected may have been in favor of license, the last vote of the town does not reverse local prohibition, because the commissioners act as a body,-the majority control. Cited, Peo. ex rel. Deutsch v. Dalton, 9 Misc. 247 Peo. ex rel. Wood v. Commissioners, 75 Hun, 226 Peo. ex rel. Wood v. Commissioners, 75 Hun, 224 Refusal of excise commissioners to issue licenses because elected as nolicense commissioners" sustained, under L. 1892, ch. 401, recognizing "local option" by electing excise commissioners under L. 1874, ch. 444. Cited, Peo. ex rel. Muckle v. Board of Excise, 13 Misc. 537 Peo. ex rel. Hislop v. Cowles, 16 Hun, 577, affirmed, 77 N. Y. 331 Habeas corpus to release one convicted in special sessions for selling and giving" liquors to an intoxicated person in violation of L. 1857, ch. 628, sec. 18, and sentenced to pay $25 and certain imprisonment. Statute created a new offense and provided that whoever shall sell or give away liquors thus-" shall be subject to not less than ten or more than twenty-five dollars for each offense." Held, that the new offense was not a misdemeanor; that only the particular penalty prescribed by the statute could be imposed and the only mode of collecting it could be applied. Peo. ex rel. Hislop v. Cowles, 77 N. Y. 331, affirming 16 Hun, 577 Sale to intoxicated person in violation L. 1857, ch. 628, sec. 18 not punishable criminally but civilly. Cited, People v. Charbineau, 115 N. Y. 433 People v. Cramer, 22 App. Div. 189 What facts justify inference of a sale. Information alleging facts on information and belief without stating sources of same insufficient, except as to allegation that defendant had no license because the people are not required to prove that. Cited, Peo. ex rel. Stevenson Brewing Co. v. Lyman, 67 App. Div. 447 People v. Cramer, 2 Park. Cr. 171 The plea of "autre fois convict " cannot be established without proof. Where the record does not show offenses are identical it lies with the defendant to establish by proof, aliunde, that such was the fact. People v. Crilley, 20 Barb. 246 "Ale" not a "wine' ing of 1 R. S. 680. vited, or a "strong or spirituous liquor" within mean Board of Commissioners v. Taylor, 21 N. Y. 173 Peo. ex rel. Deutsch v. Dalton, 9 Misc. 247 66 'Florence Mission" as described not used exclusively as a church. Power of court reviewing decision of excise commissioners. Cited, Peo. ex rel. Simons v. Murray, 14 Misc. 177 Peo. ex rel. Ryan v. Dalton, 7 Misc. 558 Fake hotel under Excise Law of 1892 established to evade rule of Excise Board in New York city not to grant saloon licenses for three corners of intersecting streets. Decision of Excise Board sustained. Hotel not necessarily entitled to license even if it is the only one in the neighborhood. "Liquor is not ncessary to the existence of a hotel." Cited, Peo. ex rel. Connelly v. Murray, 38 N. Y. Supp. 177 People v. Davis, 45 Barb. 494, affirmed, 36 N. Y. 77 Jurisdiction over sales upon boundary line of two counties or within 500 yards of such boundary given to either of such counties by 2 R. S. 727, sec. 45. Tavern keeper's license issued under L. 1857, ch. 628, held void and affording no protection because defendant was not a resident of town where issued, and even if valid did not authorize sale of liquor in a mere saloon, and defendant was bound to show that he kept an inn, tavern or hotel and kept liquors for sale there only. General verdict, where there are several counts in indictment is not erroneous where there is one good count which is sustained by evidence. People v. Dillman, 4 Wkly. Dig. 251 66 Lager beer, if proved intoxicating, it is now well settled comes within the prohibition against strong and spirituous liquors." It is not necessary that buyer of liquor "to be drunk on premises," should drink or intend to drink the entire contents of a glass, which he only tasted. People v. Eastwood, 14 N. Y. 562 Witness may state whether one was under the influence of liquor. Cited, Lewin v. Johnson, 32 Hun, 408 Peo. ex rel. Meakim v. Eckman, 63 Hun, 209 Sale of liquor to a minor is a violation of a liquor dealer's bond conditioned that his premises shall not become disorderly. Prescribed criminal penalty for such offense no bar to action on bond. Excise commissioners had discretion in the matter of issuing licenses under Law of 1857. Is not licensee estopped from denying validity of bond? Cited, Lyman v. Shenandoah Social Club, 39 App. Div. 459 Peo. ex rel. Gentilesco v. Excise Board, 7 Misc. 415 The obvious purpose of the enactment (L. 1892, sec. 43) is to seclude the church and the schoolroom from the baneful proximity of the saloon -a beneficent policy to which by a liberal construction of the law the courts should be auxiliary. The intention of the law was that "while saloons already licensed within 200 feet of a church or school may be continued, the approach of no other saloon shall be permitted within the privileged locality," even though the applicant held a license elsewhere when the law was enacted. It would even have been competent for the Legislature to revoke a license which might have been held for a place within the prescribed limits. Cited, Peo. ex rel. Deutsch v. Dalton, 9 Misc. 247 Peo. ex rel. Ketcham v. Excise Commissioners, 18 N. Y. Supp. 621, affirmed, 64 Hun, 632 When the excise commissioners refuse to issue a license, and application is made under L. 1886. ch. 496, for a writ of mandamus as therein provided for, the court before which such proceeding is brought is authorized to summarily decide whether the discretion vested in the excise commissioners has been abused, and is not required to submit the issues to a jury as in a trial under an alternative writ of mandamus. Peo. ex rel. Booth v. Fisher, 20 Barb. 652 Violations of Prohibitory Act of 1855 as well as all offenses which are not capital or otherwise infamous crimes are left under regulation of the Legislature in regard to trial by jury, and provision that such offenses be triable at special sessions is constitutional. Cited, Wynehamer v. People, 13 N. Y. 378 People v. Fitzgerald, 8 N. Y. Supp. 81 Exclusion of evidence showing names of persons found in licensed premises by accusing witness prejudicial to defendant. Peo. ex rel. Kresser v. Fitzsimmons, 68 N. Y. 515 Regularity of appointment of Albany excise commissioners under L. 1870, ch. 175. Cited, Peo. ex rel. Babcock v. Murray, 5 Hun, 42 People v. Foote, 56 N. Y. 321 L. 1857, penalties, sec. 29 does not apply to all offenses specified in act. Sale without license punishable under 2 R. S. 697, sec. 40 (fixing punishment for misdemeanors not otherwise provided for). Cited, Rollins v. Breed, 54 Hun, 485 People v. O'Donnell, 46 Hun, 358 People v. Hislop, 77 N. Y. 331 Peo. ex rel. Hislop v. Cowles, 16 Hun, 577 Neu v. McKechnie, 95 N. Y. 632 People v. Krank, 46 Hun, 632 People v. Charbineau, 115 N. Y. 433 Peo. ex rel. Healey v. Forbes, 52 Hun, 30 Billiard table may be kept in tavern if not gambling where loser of game pays for table. used for gambling-not Is gambling if, directly or indirectly anything else as cigars, drinks or money is at stake. Cited, Peo. ex rel. Silkins v. McGlynn, 62 Hun, 237 People v. French, 3 Park. Cr. 114 That one of two persons indicted together sold liquor as a clerk of the other and by his direction is no defense. Right to preliminary examination before magistrate does not by implication destroy complainant's right to present matter directly to grand jury. Peo. ex rel. Kopp v. French, 39 Hun, 507, affirmed, 102 N. Y. 583 A person who has been arrested, convicted and fined for a violation of sec. 17 of ch. 628 of L. 1857, as amended by ch. 856, L. 1869, in that he has been found intoxicated in a public place has been convicted of a "crime." "The words 'offense' and 'crime' are used as synonyms indiscriminately, as meaning the same thing." Peo. ex rel. Kopp v. French, 102 N. Y. 583, affirming 39 Hun, 507 "Offense of intoxication" created by L. 1857, ch. 628, sec. 17, as amended L. 1869, ch. 856, is a crime. Cited, Morenus v. Crawford, 51 Hun, 89 Peo. ex rel. Shortell v. Markell, 20 Misc. 149 People v. Gainey, 8 Hun, 60 Under L. 1870, ch. 175, sec. 3, licenses are declared to " expire at the end of one year from the time they are granted," but as May first was the time fixed for granting licenses, the commissioners very properly limited a license issued thereafter to the next May and it afforded no protection after that date. People v. Gates, 56 N. Y. 387 L. 1870, ch. 175, sec. 2-appointment of excise commissioners in cities. Peo. ex rel. Meakim v. Giegerich, 14 N. Y. Supp. 263 County clerk of New York county not entitled to six cent fee for filing excise bonds, filed under L. 1857, ch. 628. People v. Gilkinson, 4 Park. Cr. 26 The use of the word "or" instead of "and" is fatal in indictment only where it renders the statement of the offense uncertain. Continuendo in indictment charging sale of liquors without license on a particular date is harmless surplusage. Cited, People v. Brown, 6 Park. 666 Peo. ex rel. Schuler v. Schatz, 50 App. Div. 544 People v. Gregg, 59 Hun, 107 Proper form of indictment under code. Does common laborer, sales agent, teamster, etc., participate in manufacture of liquor? A city mayor as the head of its police is not a police official within L. 1890, chap. 163. Cited, People v. Olmstead, 74 Hun, 323 People v. Hannon, 13 N. Y. Supp. 117 People v. Ferranto, December, 1898, unreported People v. Groat, 22 Hun, 164 Action under L. 1857, ch. 628, sec. 24, in the name of the people by the commissioners of excise of Cooperstown instead of in their own names, upon a license bond given under L. 1857, ch. 628, sec. 7, the breach complained of being that the licensee suffered and allowed gambling in his hotel. Held, that the want of a seal does not prevent recovering and that as the people are the obligees in the bond, it is proper to sue in the name of the people, unless there is some statutory law which requires the action to be brought in the name of some other person. Cited, Peo. ex rel. Meakim v. Eckman, 63 Hun, 209 People v. Hannon, 13 N. Y. Supp. 117 An alderman though sharing power of common council to appoint and |