Volume 3 — Liquor Tax Reporter

<p>Appeal by Patrick W. Cullinan, as State Commissioner of Excise of the State of Hew 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 Queens on the 29th day of January, 1902, denying- the petitioner’s application for an order revoking and canceling a liquor tax certificate issued to Adell Hartman, and from the judgment entered in said clerk’s office upon such order on the 29th day of January, 1902.</p>

Appeal by Max Micha, 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 31st day of January, 1902, canceling a liquor tax certificate theretofore issued to him.

<p>Appeal from Recorder’s Court of Corning.</p> <p>John Miller was convicted in the Recorder’s Court of the city ■of Corning of the crime of resisting an officer while in the discharge of his duty, and appeals. Affirmed.</p>

<p>Application for an order revoking and cancelling a liquor tax certificate.</p>

<p>Application for an order revoking and cancelling a liquor tax certificate.</p>

<p>Voluntary dissolution of a brewing corporation—When a sale of the entire properties will not be ordered before the corporation is dissolved.</p> <p>In a proceeding for the voluntary dissolution of a brewing corporation the court should not, except for the most cogent reasons, authorize a sale of all the property of the corporation prior to the entry of the final order dissolving the corporation.</p> <p>Evidence that the liquor tax certificates held by the corporation to secure advances to its customers were constantly depreciating in value and that, if not renewed at the expiration thereof, certain chattel mortgages held by the corporation would also depreciate in value and that the temporary receivers who were authorized to continue the business had not been able to extend the business by making loans to new customers to enable them to fit up their places and obtain licenses, does not constitute a sufficient reason for authorizing a sale of the property of the corporation prior to its dissolution.</p> <p>Hirschberg, J„ dissented.</p>

<p>Appeal by the defendant, Fred H. Tuthill, a justice of the peace in and for the county of Suffolk, 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 25th day of February, 1902, granting an absolute writ of prohibition against the said defendant.</p>

<p>Appeal by the defendant, The Union Surety and Guaranty Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oswego on the 23d day of July, 1902, upon the decision of the court rendered after a trial at the Oswego Trial Term before the court without a jury, the case having been submitted upon an agreed stater ment of facts, and also from an order entered in said clerk’s office on the eighth day of August, 1902, denying the defendant’s motion for a new trial made upon the exceptions filed.</p>

Appeal by Joe Kray 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 28th day of November, 1902, revoking and canceling a liquor tax certificate theretofore issued to him.

<p>Motions to dismiss and in arrest of judgment and for a new trial.</p>

<p>Conviction for a violation of the Liquor Tax Law.</p>

Order unanimously affirmed, with costs. Appeal by John P. Auchmoody, from an order of the County Judge of Ulster County, dated the 28th day of November, 1902, and entered in the office of the Clerk of the County of Ulster on that day, revoking and cancelling liquor tax certificate No. 30,326, issued to the said John P. Auchmoody.

<p>Liquor Tax Law—Abandonment of the place of traffic—Consents.</p> <p>A building is not exempt from consents to the liquor traille as having been actually occupied as a hotel on March 23, 1896, and continuously thereafter where it appears from subsequent applications for liquor tax certificates, to which the owner of the building consented in writing, that her tenant stated, in 1896 and in 1897, that he intended to traffic in liquors in connection with a “restaurant” and in a later year in connection with “lunch business” and where there is proof that in all these years he closed the place on Sunday and did not keep it open as a hotel.</p> <p>Consents of owners of buildings used mainly for business purposes cannot be counted in determining whether sufficient consents have been procured.</p>

<p>Applications for certificates that it is reasonable that the charges herein be proceeded with by indictment. The provision as to such a certificate is to be found in L. 1901, ch. 466, § 1409.</p>

<p>Liquor tax certificate—An assignment thereof with the consent of a special deputy commissioner—It does not protect the assignee where his assignor has violated the statute—The special deputy is not chargeable with the knowledge of the State Commissioner.</p> <p>One Davidoff, to whom. the special deputy commissioner of excise for the borough of Brooklyn had. issued a liquor tax certificate, violated the Excise Law in the presence of three special agents of the State Commissioner of Excise. The special agents presumably reported the violation to the State Commissioner, but did not report it to the special deputy commissioner for the borough of Brooklyn.</p> <p>Thereafter the special deputy commissioner for the borough of Brooklyn, acting pursuant to section 27 of the Liquor Tax Law (Laws of 1896, chap. 112, as amended by chap. 312 of the Laws of 1897), gave his consent to the transfer of the certificate by Davidoff to one Luca, who paid no consideration for such transfer.</p> <p>It did not appear that the special deputy who approved of the transfer of the certificate knew of the violation of the certificate at the time he consented to the transfer, or that the State Commissioner of Excise knew of the transfer at the time such transfer was made and approved.</p> <p>Held, that neither the fact that Luca claimed to be unaware of the violation at the time he accepted the transfer of the certificate, nor the further fact that the special deputy commissioner for the borough of Brooklyn had consented to such transfer, operated to prevent the State Commissioner of Excise from maintaining a proceeding against Davidoff and Luca for the cancellation of the certificate because of the violation in question;</p> <p>That the consent given by the special deputy commissioner to the transfer did not operate to condone the violation for the benefit of either Davidoff or his successor, nor as an admission on the part of the special deputy commissioner, which would be binding upon the State Commissioner of Excise, that Davidoff had not violated the Excise Law;</p> <p>That the knowledge of the State Commissioner of Excise was not the knowledge of the special deputy commissioner for the borough of Brooklyn, and that such special deputy commissioner owed no duty to Luca to inform himself as to whether Davidoff had violated the law before approving the transfer of the certificate. •</p>

<p>Appeal by the plaintiff, “Ernest Ochs,” a corporation, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 26th day of September, 1902, upon the verdict Of a jury, and also from an order bearing date the 27th day of May, 1902, and entered in said clerk’s office, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

A liquor tax certificate is personal property. (Niles v. Mathusa, 20 App. Div. 483, affd. 162 N. Y. 546; People ex rel. Miller v. Lyman, 27 App. Div. 527, affd. 156 N. Y. 407; Matter of Lyman, 53 App. Div. 330; McNeeley y. Welz, 166 N. Y. 124.) The statute under which bond was given will not be construed so as to enlarge the obligation of the surety. (Wood v. Fisk, 63 N. Y. 245; Lang v. Pike, 27 O. St. 497; Ward v. Stahl, 81 N. Y. 406: Nat. Mech.

<p>Liquor tax certificate is personal property, and may be assigned or transferred like other personal property. (Niles v. Mathusa, 20 App. Div. 483, affd. 162 N. Y. 546; People ex rel. Miller v. Lyman, 27 App. Div. 527, affd. 156 N. Y. 407; Matter of Lyman, 53 App. Div. 330; McNeeley v. Welz, 166 N. Y. 124.) The statute will not be construed so as to enlarge the obligation of the surety. (Wood v. Fisk, 63 N. Y. 245; Lang v. Pike, 27 O. St. Rep. 497; Ward v. Stahl, 81 N. Y. 406; Banking Assn. v. Conkling, 90 N. Y. 116; Lyman v. Schermerhorn, 167 N. Y. 113; Lyman v. Kane, 57 App. Div. 549; Waldron v. Fargo, 170 N. Y. 130.) Bond was given only for Sisto, and applied only to her business. (Matter of Lyman, 59 App. Div. 217; Lyman v. Cheever, 168 N. Y. 42; Lyman v. Kane, supra; Lyman v. Shenandoah Club, 39 App. Div. 459.) Sisto cannot be said to have “ suffered and permitted ” the violation. (Gregory v. U. S. 17 Blatch. 325; Town of Collinsville v. Scanland, 58 Ill. 221.)</p> <p>The defendant Sisto prior to the place becoming disorderly leased it to other parties, who agreed to have the liquor tax certificate properly transferred.</p>

<p>Appeal by the petitioner, Patrick W. Cullinan, as State Commissioner of Excise, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office oí' the clerk of the county of Queens on the 22d day of April, 1903, denying the petitioner’s motion to revoke and cancel liquor tax certificate No. 21,917, issued to John Niederstein, and also from a judgment for costs in favor of the respondent, entered in said clerk’s office on the 2d day of June, 1903.</p>

Appeal by the defendant, The Aetna Indemnity Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Franklin on the 5th day of June, 1903, upon the decision of the court rendered after a trial at the Franklin Trial Term, a jury having been waived. Defendant is a foreign corporation, having its principal office and place of business in the State of Connecticut.

<p>Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.</p>

Appeal by the defendant, The American Brewing Company, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 11th day of May, 1903, denying the defendant’s motion to set aside an assessment of damages.

<p>Sales—Delivery on premises—Liquor tax certificate—Nominal Holder-Liability.</p> <p>Defendant, whose name appeared on the liquor tax certificate applicable to a place where merchandise is delivered to another conducting a saloon there, is not liable to the seller for the price; the seller not having seen the certificate when he extended credit, and there being no proof that defendant had any connection with the sale; it appearing on the contrary, that he was an employee of a brewing company, the real owner of the certificate.</p>

<p>Hearing held at the Washington County Court chambers, in the village of Sandy Hill, New York, on the 9th day of December, 1903, at 10 a. m., before Hon. Nash Rockwood.</p>

<p>Hearing held at the Washington County Court chambers, in the village of Sandy Hill, New York, on the 9th day of December, 1903, at 10 o’clock, a. m., before Hon. Nash Rockwood.</p>

<p>Motion by plaintiff for new trial on judge’s minutes.</p>

<p>Proceedings under the Liquor Tax Law to revoke and cancel a liquor tax certificate.</p>

As the defendants were compelled to rest their defense upon negative evidence, the court should have allowed the questions of fact to go to the jury. (People v. Coombes, 36 App. Div. 284, affd. 158 N. Y. 532.) The defendants did not “ suffer or permit ” the premises to be disorderly, because the conversation between the women in the restaurant and the plaintiff’s witnesses was not overheard.

An archway between the barroom and a rear sitting room from which a curtain is suspended is an open and unlocked door. (Liquor Tax Law, § 31, clause g.) The testimony of the petitioner’s special agents should be weighed, not counted, as against those of alleged workmen making repairs in the place who acknowledge swiping considerable beer behind the back of the' bartender. (People v. Lyman, 20 Misc. 80, affd. 30 App.

<p>Motion to amend decision denied.</p>

<p>Patrick W. Cullinan, as State Commissioner of Excise of the State of New York, and John W. Edwards, Appellants.</p> <p>Resubmission to the electors of a town of the local option questions— Waiver of the objection that a motion noticed before a county judge was made before the County Court held by a judge of another county—What order is a court order and what a judge’s order— Proper procedure on a motion to intervene—'Omission, from the submission of the fourth question, of the words “if the majority of the votes cast on the first question submitted are in the negative.”</p> <p>A court order should have a caption reciting the time, place and term ot court. A judge’s order, however, is not vitiated because it contains such a caption, as the caption may be treated as surplusage. The body ot an order may be examined for the purpose of determining whether it was made by a court or a judge.</p> <p>A petition, for the resubmission to the electors of a town in Washington county of the local option questions speciiied in section 16 of the Liquor Tax Law with respect to the sale of liquors, was addressed to “the County Judge of the County of Washington.” When the proceeding came on for a hearing the parties found that the county judge of Washington county was absent, but that a regularly constituted County Court presided over by the county judge of Saratoga county was in session. The parties, without objection that the petition was addressed to the county judge, voluntarily submitted the matter to the court upon the merits. An order directing the resubmission of the questions was granted, the caption of which was “County Court, Washington County. Hon. Nash Rockwood, County Judge of Saratoga County, presiding.” The body of the order contained a recital that the county judge of Saratoga county had been called upon and requested to hold the present term for the county judge of Washington county, and that the county judge of Saratoga county was in said county for the purpose of holding said court pursuant to such request. At the foot of the order was a further recital that the order was made at a Special Term held in and for the county of Washington at the chambers of the county judge of that county.</p> <p>Held, that the parties must be deemed to have waived the presentation of the matter to the county judge of Washington county, and to have voluntarily submitted the controversy to the County Court ot" that county;</p> <p>That the order directing the resubmission should be deemed a court order, and that Washington County Court held by the county judge of Saratoga county had jurisdiction to make it.</p> <p>Semble, that if the order was a judge’s order, the county judge of Saratoga county had no authority to make it.</p> <p>A motion by electors and taxpayers of 'the town to intervene in such a .proceeding is properly denied where they gave no notice of the motion and made no formal application to intervene except by appearance at the -hearing.</p> <p>Where it appears that the four propositions to he voted upon by the •electors were submitted in the language of section 16 of the Liquor Tax Law, with the exception that there was omitted from the 4th proposition •the following phrase: “If the majority of the votes cast on the first question submitted are in the negative,” a resubmission of the propositions •will be ordered.</p>

<p>Appeal by Patrick W. Cullinan, as ¡átate Commissioner of Excise of the State of New York, from an order of the County Court of Washington county, bearing date the 9th day of December, 1903, and entered in the office of the clerk of the county of Washington, directing a resubmission of the local option questions to the voters of the town of Greenwich.</p>

Action‘by C. Henry Offerman and another, as receivers of the Malcom Brewing Company, against Bernard Reich. From a judgment for plaintiffs, defendant appeals. Affirmed. Argued before Freedman, P. J., and MacLean and Scott, JJ.

Proceedings upon the return óf a writ of certiorari granted by the county judge of Delaware county to review the action of Hugh Adair, county treasurer of said county, in refusing to issue to George H. Lasher, the relator, a liquor tax certificate.

This is an application for the revocation and cancellation of liquor tax certificate issued to Pearl Foster, of Arkport, N. Y., by the treasurer of Steuben county.

Proceedings under the Liquor Tax Law for an order directing the resnbmission of the local option questions to the electors of the town of La Fayette.

Appellant was found guilty of selling liquor on Sunday to persons not guests of Ms hotel, and was fined four hundred dollars, which he paid. A refusal to postpone trial of an indictment when good cause is shown, will be reviewed as matter of law by the Appellate court. (People v. Calabur, 91 App. Div. 529; People v. Vermilyea, 7 Cow. 383; Section 357 Code of Criminal Procedure; Eighmy v. The People, 79 N. Y. 546; People v. Horton 4 Park. Cr.

Indictment for violation of the Liquor Tax Law, in a town in which the liquor Traffic had been forbidden by the last town meet-. „ing.

. The defendant did not have a trial before an impartial jury; the court should have allowed the question to jurors “ Have you expressed an opinion about this class of cases at this term of court?” (People v. McGonegal, 136 N. Y. 62; Abbott v. The People, 86 N. Y. 460.) There was not sufficient evidence to justify submission to jury . to uphold the conviction; there was no evidence whatever that defendant knew that what bartenders gave to witnesses was lagei beer and not…

<p>Proceeding to revoke the liquor tax certificate issued to the defendant.</p>

Certiorari issued out of the Supreme Court and attested on the 29th day of December, 1902, directed to John N. Partridge, police commissioner of the police department of the city of New York, commanding him to certify and return to the office of the clerk of the county of New York all and singular his proceedings had in relation to the dismissal of the relator from the police force of the police department of the city of New York.

Appeal by the landlord from a final order of the Municipal Court of the city of New York, second district, borough of Manhattan, dismissing the petition in summary proceedings after the verdict of a jury.

The plaintiff failed to prove a cause of action, and the court erred in refusing to grant defendant’s motion for a dismissal of the action made at the close of the case, and in directing a verdict for the plaintiff.

The defendant appeals from a judgment of conviction for selling liquor without a liquor tax certificate. It was the exclusive province of the jury to determine whether under the admitted facts, andthe facts in dispute, particular transactions amount to a sale of liquors by the defendant.

The Trial Court abused its discretion in denying the application of the defendant to put the case over the term, under circumstances which would lead the district attorney to agree not to move the case, and which compelled the defendant’s absence from the place of trial. The court should not have forced the case to trial, and defendant should be allowed his day in court.

The court was not authorized to adjourn this proceeding under section 29 of the Liquor Tax Law, to enable the petitioner to make the State Commissioner of Excise a party. The petition and affidavits were insufficient.

Appeal by the petitioners, W. J. Rowe and others, from an order of the county judge of Onondaga county, entered in the office of the clerk of the county of Onondaga on the 8th day of October, 1904, denying the petitioners’ application for a resulimission of local option questions under the Liquor Tax Law to the electors of the town of La Fayette, Onondaga county.

Appeal by the defendant, Charles Seeley, from a judgment of the County Court of Schuyler county in favor of the plaintiff, entered on the 21st day of April, 1904, upon the verdict of a jury convicting the defendant of violating the Liquor Tax Law; also from an order bearing date the 22d day of December, 1903, and entered in the office of the clerk of the county of Schuyler overruling the defendant’s demurrer to the indictment, and also from two orders made on the 21st day of…

<p>The failure of the plaintiff to offer proof of all the alleged violations did not preclude the cross-examination of his witnesses in relation thereto, and in relation to the testimony previously before the grand jury and at the first trial of this action given in relation thereto. (Langley v. Wadsworth, 99 N. Y. 61; Platner v. Platner, 78 N. Y. 90; Weber v. Manheimer, 23 Misc. 157; People v. Strait, 154 N. Y. 171; Code of Civ. Pro. § 192.) Whether such witnesses had previously testified voluntarily or under subpoena, is immaterial. This court may review the trial court’s exercise of discretion on this point. (Mowbray v. Gould, 63 App. Div. 158.) It was error to sustain objection to the question as to how many saloons there were in the neighborhood which the witness overlooked while getting evidence of violations at defendant’s place. It was error to strike out the defendant’s answer that he did not sell liquor to anybody on Sunday in 1898, a period which covers the occasions involved in the issues. (People ex rel. Phelps v. Oyer & Terminer, 83 N. Y. 437; People v. Gates, 13 Wend. 311.) See People v. Fitzgerald, (8 N. Y. Supp.), as to limitation of cross-examination.</p> <p>It was error to charge that “ where evidence is within reach of a party upon a matter in issue, and he fails to produce it, the fact that he does not produce it if he might have done so may be considered in determining the truth of his own statement on the particular question.” The rule of law is that where a party fails to produce proof that may justly be presumed to be within his reach, which proof goes to the fact in dispute, his failure to produce the same would warrant the inference that it would be unfavorable to him. (Cushman v. DeMallie, 46 App. Div. 381; McGuire v. Hartford Fire Ins. Co., 7 App. Div. 590; Ryder v. Miller, 86 N. Y. 507; People v. Hovey, 92 N. Y. 554.) In a civil action, a party’s omission to call a witness who has no other or better knowledge of the matter in dispute than the witnesses produce, is not necessarily suspicious, entitling the adverse party to every presumption to his prejudice. (Blecker v. Johnson, 69 N. Y. 312; Fitzpatrick v. Woodruff, 47 N. Y. Superior Rep. 441; Mowbray v. Gould, 63 App. Div. 159.</p> <p>The United States Fidelity & Guaranty Company rely on the • other appellant’s brief.</p>

<p>The object and purpose of the Liquor Tax Law was and is to regulate the traffic in intoxicating liquors, and no other. (People ex rel. Einsfeld v. Murray, 149 N. Y. 377.) Any statute which purports to make criminal traffic without license in any of the non-intoxicating, harmless beverages, ought to be held unconstitutional. (Am. & Eng. Ency. Law, vol. 17, p. 2061.) Where an indictment charges the sale of beer or lager beer without a liquor tax certificate, it is as essential under the Liquor Tax Law as it was under the old excise laws to allege in the indictment and prove on the trial that such lager beer was intoxicating, because the courts take judicial notice that there are lager beers which are and which are not intoxicating. (Blatz v. Rohrbach, 116 N. Y. 450; Schlosser v. State, 55 Ind. 82; People v. Rau, 63 N. Y. 277; Matter of Hunter, 34 Misc. 389; affirmed, 59 App. Div. 626.) A fine of five hundred dollars, or imprisonment for two hundred and fifty days, was excessive. The Trial Court imposed a more severe sentence on this defendant than other defendants convicted of the same offense at the same term of court. Justice requires a new trial. (Code Grim. Proc. § 527.) By comparison, the judgment seems cruel and unusual. (New York Constitution, Art. 1, § 5.)</p>

This is an action brought under section 18 of the Liquor Tax Law for the full penalty of a liquor tax bond. The court directed a verdict in favor of the plaintiff. The evidence being conflicting on every material question in the case, the court erred in directing a verdict for the plaintiff. (McDonald v. Metropolitan Ry.