Volume 2 — Liquor Tax Reporter

<p>Appeal from an order directing appellant to issue liquor tax certificate to above-named applicants.</p> <p>See brief filed in Matter of McGrievey v. Grippin, 37 App. Div. 66.</p>

This is an appeal from a judgment convicting defendant of selling liquor on Sunday and from an order denying defendant’s motion for a new trial. The court erred in not submitting to the jury the question as to whether or not a sandwich or a cracker constituted a meal; also, as to whether or not the people who were in defendant’s place on the evening in question were guests.

Appeal by defendant from judgment of conviction adjudging him guilty of violating the Liquor Tax Law in keeping his place of business open between one and five .o’clock a. m. The court erred in excusing juror Foley upon the people’s-challenge, and the defendant can take advantage of this error.

Defendant was arrested at Tuttlefoavii, in the toAvn of Gardiner, for violating the liquor tax law, it being alleged that a person in his employ had sold intoxicating liquor to a minor under 16 years of age, and Avas held by Justice of the Peace Cornelius Freer to aAvait the action of the grand jury. From this order of the justice, Hedden appealed to the County Court.

<p>Application by defendant for an order that the charge against him be transferred to the Court of General Sessions and be prosecuted by indictment.</p>

Appeal by the plaintiff, Henry H. Lyman, as State Commissioner of Excise of the State of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 4th day of January, 1899, denying the plaintiff’s motion for a retaxation of costs.

<p>Appeal in this action from an order denying plaintiff’s motion for a retaxation of costs.</p>

<p>Appeal in this action from an order denying plaintiff’s motion for a retaxation of costs.</p>

<p>Proceedings upon a writ of certiorari granted by the county judge of Monroe county to review the action of John B. Hamilton, as county treasurer, in refusing to issue a liquor tax certificate to the relator.</p>

Appeal by the defendant, the Fidelity and Deposit Company of Maryland, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 27th day of October, 1898, upon the verdict of a jury rendered by direction of the court. The action is upon an excise bond given by a corporation known as the Shenandoah Social Club as principal, and this appellant as surety, to the People of the State of New York.

<p>Appeal by the defendant Fidelity and Deposit Company of Maryland from a judgment against it entered, upon a direction at Trial Term.</p>

<p>Certiorari to review the action of the county treasurer of Sullivan county for a refusal to issue a liquor tax certificate to the relator.</p>

Appeal by the plaintiff, Joseph W. Baker, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Herkimer on the 23d day of May, 1898, upon the decision of the court, rendered after a trial before the court without a jury at the Herkimer Trial Term, dismissing the complaint upon the merits.

<p>This was an appeal from an order denying a motion to revoke and cancel a liquor tax certificate issued to John King of the town of Covert, Seneca county, N. Y. The town of Covert Voted in favor of a license at a town meeting held February 11, 1896. King made application to and received from the excise board of the town of Covert a license to traffic in liquors, which license was to expire May 1, 1896. Said King trafficked in liquors in said town up to May 1, 1896. From May 1, 1896, to May 1, 1897, said King trafficked in liquor under a license obtained by'him pursuant to Liquor Tax Law. At the annual town meeting held in Covert February 9, 1897, the town of Covert voted in the negative upon all of the local option questions of section 16 of said act, except as to the selling of liquors by a pharmacist on a physician’s prescription. Thereafter and on February 14,1899, the town voted in favor of all four propositions submitted. Thereafter the said King made application for and obtained liquor tax certificate. He obtained no consents from any of the-eight owners of buildings used exclusively as dwellings within two hundred feet of the premises licensed, claiming that such consents ¡Were unnecessary. It appeared that after the town of Covert-¡had voted no license, and after May 1, 1897, said King .'vacated-¡’the premises where he had been conducting a saloon and went ¡ ’to reside at East Yarick, where he conducted a hotel for nearly two years. His family went with him and the premises at Covert were used as a repair shop and small store, and for two years or more no traffic in liquors was carried on at said premises in Covert. The premises at Covert were owned by said King’s wife.</p> <p>Where the business of one proprietor is closéd up and no resumption attempted for sixty days by his successor, the privilege which the law grants must be regarded as surrendered. People ex rel. Bagley v. Hamilton, 25 App. Div. 428.</p> <p>if an abandonment for two months, as in the case of People ex rel. Bagley v. Hamilton (supra), does not work a forfeiture of the privilege conferred by statute, then an abandonment for a much longer time would not have that effect. The Legislature could not have intended that the protection sought to be given to our schools and churches should be of such little value. People v. Murray, 148 N. Y. 171; People v. Board, 7 Misc. Rep. 415; People v. Lammerts, 18 Misc. Rep. 343; In re Ritchie, 18 Misc Rep. 341; In re Zinzow, 18 Misc. 653; In re Korndorfer, 49 Supp. 559.</p> <p>If after the traffic in liquors in Covert had been discontinued by the local option vote, a church or school house had been built within two hundred feet of King’s property, it cannot be contended that he could return twenty years after and open up business, simply because he had a license on March 23, 1896. The Legislature never intended such a construction of the Liquor Tax Law. A thing which is within the intentions of. the makers of a statute is as much within the statute as if it were within the letter. Riggs v. Palmer, 115 N. Y. 506.</p>

The action was brought upon a bond in order to recover the value of a liquor tax certificate, which the defendant, as alleged, had neglected and refused to deliver.

Appeal by the defendant, Henry H. Lyman, State Commissioner of Excise, from an order of the Supreme Court, made at the Suffolk Special Term and entered in the office of the clerk of the county of Suffolk on the 3d day of July, 1899, directing that a peremptory writ of mandamus issue requiring the defendant to prepare two orders for the payment of the rebate of the relator, Edward Ging, and transmit the order -on the county treasurer for two-thirds and the check of the State…

Appeal by the Erie County Athletic Club from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 8th day of September, 1899, upon the return of an order to show cause why an order should not be made in this, proceeding revoking and canceling a liquor tax certificate, held by the Erie County Athletic Club, on the ground that the holder of said certificate had been guilty of a violation of the Liquor…

Application to revoke liquor tax certificate, upon the ground of the violation of the provisions of the Liquor Tax Law by the holder.

<p>Appeal from a judgment entered upon the report of a referee.</p>

<p>Liquor tax certificate—A false answer in a first application, referred to in an application for a renewal, vitiates the latter.</p> <p>Where a person who has procured a liquor tax certificate, hy malting a false answer to a question contained in the application therefor, refuses to answer a similar question contained in his application for a renewal thereof, upon the ground that, under subdivision 8 of section 17 of the Liquor Tax Law (Laws of 1896, chap. 112, as amended by Laws of 1897, chap. 312), he was not obliged to answer that question twice, the false statement in the original application vitiates the certificate issued under the second application.</p>

Appeal by. James Harris from an order of the Supreme Court made at the Queens County Special Term and entered in the office of the clerk of the county of Queens on the 25th day of July, 1899, revoking and canceling liquor tax certificate Ho. 22,204, granted by Charles L. Phipps, as county treasurer of Queens-county, to James Harris.

<p>Appeal by the defendant, Etta Forgotston, from a judgment of the City Court of the city of New York, overruling a demurrer to the complaint herein.</p>

<p>Liquor Tax Law—Revocation—Stay on appeal 'not permissible.</p> <p>Where proceedings, taken to revoke a liquor tax certificate for the falsity of material statements contained in the application therefor, have resulted in an order of revocation and the same has been entered and served, the court has no power to grant a stay of proceedings pending an appeal from the order.</p>

<p>Application for peremptory writ of mandamus directed to the County Treasurer of Cattaraugus county requiring him to grant relator’s application for a liquor tax certificate upon payment of the fee therefor.</p>

<p>Lease with an unfilled blank in the clause relating to the use of f}he demised premises—Effect thereof—It cannot be supplied by proof of an oral agreement.</p> <p>The existence of a blank, in a lease which provides that the demised premises shall “be occupied-and not otherwise,” does not constitute an ambiguity authorizing the admission of parol evidence that when the lessee accepted the lease the lessor verbally promised to sign a consent to allow the premises to be used for the sale of intoxicating liquors.</p> <p>Semble, that such a lease is complete and effective.</p>

<p>Motion for a stay pending appeal.</p>

<p>Liquor tax certificate—The offense of obstructing the view into the saloon from the street requires the court to cancel it.</p> <p>Bemble, that a charge that the keeper of a liquor saloon, between the hours of one and five o’clock a. m, on a certain Sunday in May, “did have, keep and maintain screens, blinds, curtains, articles and things covering a part of each window of the room at said premises where liquors were sold and kept for sale, and did have, keep and maintain in the windows and doors of said premises opaque and colored glass, all of which and each of which obstructed and prevented a person passing from having a full view from the sidewalk, alley and road in front of and from the side and end of said building of a part of the bar and room, and of the whole thereof in said building where liquors were sold and kept for sale,” in violation of subdivision h of the 31st section of the Liquor Tax Law (Laws of 1896, chap. 112), if sustained by satisfactory proof, requires the court to vacate and cancel the liquor tax certificate held by the keeper of such liquor saloon.</p>

Appeal by the plaintiff, Henry H. Lyman, as State Commissioner of Excise, from a judgment of the Supreme Court in favor of the defendant, the Fidelity and Deposit Company of Maryland, entered in the office of the clerk of the county of Rensselaer on the 31st day of March, 1900, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury at the Rensselaer Trial Term.

<p>Liquor Tax Law—Exemption from.' consents not conferrable upoh an adjoining building of the certificate holder by his incorporating it into the building exempted.</p> <p>The owner of premises, occupied exclusively as a hotel on the 23d- day of March, 1896, thereafter procured a liquor tax certificate for it, being exempted by statute from procuring the statutory consents. In 1899, after taking in a building, across- an alley, acquired by him under a separate deed and which had been used as a hardware store, he applied to have the certificate transferred to the latter building and falsely stated in his application that there were no buildings occupied exclusively as dwellings within 200 feet of the hardware store."</p> <p>Held, that the privilege which attached to the hotel could not be made to inure to the benefit of the independent hardware store by Incorporating the latter into the hotel, that the statement of the application was false as matter of fact, and that the certificate must, therefore, be forfeited.</p>

<p>Application for a writ of habeas corpus on behalf of a defendant held to bail by Court of Special Sessions upon the charge of selling liquors without a liquor tax certificate at The Maryland Kitchen, No. 254 West 34th Street, New York city. No liquor tax certificate could be obtained for this place on account of its proximity to a church and a dwelling, so that the liquors served there were obtained from another saloon across the street.</p>

<p>Appeal from order by which a liquor tax certificate issued to one Timothy Crowley is revoked and cancelled.</p>

<p>Certiorari under section 28 of Liquor Tax Law, subdivision 1, as amended by chapter 312 of 1897.</p>

<p>Demurrer to indictment.</p>

<p>Application under section 16 of the Liquor Tax Law for an order directing a special town meeting to be called to vote upon the local option questions provided for in said section, on the ground that said questions were not properly submitted to the electors of said town at the regular town meeting held in March, 1901.</p>

<p>Report of referee confirmed and respondent removed from his office as a justice of the peace. It is further ordered that the respondent pay to the treasurer of the County of Allegany the sum of $319.62 to reimburse said county for the fees and expenses of the referee and stenographer in this proceeding, as allowed by this court. Application to remove a justice of the peace from office under the power conferred by section 132 of the Code of Criminal Procedure.</p>

Motion by Myers for mandamus to compel the board of can-, vassers of the town of Wales, in the county of Erie to reconvene and recanvass the votes cast upon the questions of local option in. said town on the 12th day of March, 1901, and directing said board to reject all votes cast upon the question of local option at said town meeting, and directing the cancellation of the certificate filed with the deputy excise commissioner in the city of Buffalo, etc.

<p>Motion by the plaintiff to strike out of the answer of the defendant, Frank Hermann, the words, in folio 2: “ He repeats the foregoing allegations,” on the ground that the said matter is redundant; and the words in folios 2 and 3 thereof, “And for a further and separate defense against the cause of action set forth in the complaint alleges as follows: II. That upon the trial of an indictment in the Court of General Sessions in and for the county of Hew York, which is a court of record, it was adjudged upon the verdict of a jury that the defendant was not guilty of and did not commit the acts and omissions stated in the complaint herein, and that no appeal was taken from said judgment, and the time within which an appeal could be taken has expired,” on the ground that the matter therein contained is irrelevant, immaterial and impertinent.</p>

Appeal by the defendant, The Fidelity and Casualty Company of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 4th day of January, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 28th day of December, 1900, denying the defendant’s motion for a new trial made upon the minutes.

<p>Evidence of agents of the State Excise Department is not subject to the same scrutiny as that of private detectives—What proof is required to enable one to take advantage of the exception in the case of a club—By what act is the privilege lost.</p> <p>Special agents of the State Excise Department, who are charged with the duty of investigating violations of the Liquor Tax Law and of generally supervising persons engaged in the liquor traffic, are not hired to obtain evidence, nor are they in any sense detectives, and testimony given by them on the trial of an action brought by the State Commissioner of Excise to recover the penalty of a liquor tax bond, because of the sale by the principal in the bond of liquor to such special agents on Sunday, is not subject to the same scrutiny as the evidence of a private detective hired at the instance and for the benefit of private persons.</p> <p>On the trial of such an action the plaintiff is entitled to have the court charge that in order to enable the defendants to take advantage of the exception contained in the Liquor Tax Law in favor of clubs, it was necessary for them to plead and prove all the elements bringing the principal in the bond within such exception, and also that if the principal had ever acquired the privileges of a club, it lost them if it sold liquors to persons who were not members of the club.</p>

The obligee having contrived to bring about a breach of the condition of the bond, such breach cannot be made a ground of forfeiture against the surety. (Lyman v. Gramercy Club, 28 App. Div. 35; Lyman v. Broadway Garden Hotel Co., 33 App. Div. 130; Lyman v. Shenandoah Social Club, 39 App. Div. 459; Lyman v. Schermerhorn, 53 App.

Lawrence county clerk’s office on the 20th day of July, 1901, directing the issuance of a mandamus to the defendants, requiring them to convene and recanvass and declare void certain ballots voted at a town meeting. At a town meeting held in the town of Norfolk, St. Lawrence county, February 12, 1901, votes were taken upon the four local option propositions under the Liquor Tax Law. These votes were canvassed by the board of canvassers and the result declared.

<p>Application by a receiver in supplementary proceedings for an order directing the payment to Mm by Henry H. Lyman, State Commissioner of Excise, of the amount of the rebate of liquor tax certificate No. 18,602, issued to defendant June 14, 1900.</p>

Appeal by the relator, the David Stevenson Brewing Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 2d day of February, 1901, upon an order of the Supreme Court, made at the New York Special Term and entered in tho office of the clerk of the county of New York on the 22d day of January, 1901, dismissing an alternative writ of mandamus after a trial at the New York Trial Term.

Appeal by Patrick WV Cullinan, as State Commissioner of Excise of the State of New York, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 18th day of May, 1901, directing that a peremptory writ of mandamus issue to the successor in office of Henry H. Lyman, as State Commissioner of Excise of the State of New York, requiring him to issue two orders for the payment of a rebate alleged…

<p>Mandamus to compel payment of a liquor tax certificate rebate—A violation of the Liquor Tax Law defeats the right to rebate—Where it is alleged, an alternative writ may issue—What is a dismissal of a prosecution therefor against the licensee.</p> <p>An order made by a magistrate of the city of New York, discharging a person charged with violating the Liquor Tax Law, and reciting that there is no sufficient cause to believe him guilty of a violation of that law, is a dismissal of the proceeding upon the merits within the meaning of section 25 of the Liquor Tax Law relating to the payment of a rebate-upon a surrendered certificate.</p> <p>A violation of the Liquor Tax Law, by trafficking in liquor after the-surrender of the certificate and within the term for which the tax was paid, is, of itself, sufficient to defeat a claim, by an assignee of the certificate, for the payment of the rebate for the unexpired term, although no prosecution has even been instituted on account of such violation.</p> <p>Consequently, where the State Commissioner of Excise, in opposition to-a motion for a writ of mandamus to require him to pay a rebate upon a surrendered certificate, sets forth three separate violations of the Liquor Tax Law by the holder of the certificate during the term for which the tax had been paid, and that one of these violations had been made the-basis of a criminal prosecution and had resulted in his acquittal, but that no criminal charge had ever been made against him with reference to the two other alleged violations, the relator is entitled to an alternative writ and not to a peremptory writ.</p>