Born v. Hopper — 110 A.D. 218

Majority

p. 218

Jacob Born, Appellant, Respondent, v. Isaac A. Hopper, as Superintendent of Buildings for the Borough of Manhattan, Respondent, Appellant, Impleaded with Patrick W. Cullinan, as State Commissioner of Excise, and Edward H. Healy, as Special Deputy Commissioner of Excise for the Boroughs of Manhattan and The Bronx, Respondents.

First Department,

December 30, 1905.

Headnote

Liquor Tax Law—injunction to restrain removal of certificate refused— injunction to restain removal of partitions in hotel granted.

The court has no.power to grant a temporary injunction restraining a Special . Deputy Commissioner of Excise from canceling and taking possession of a liquor tax certificate pursuant to the Laws of 1905, chapter 697. .

But, though a hotelkeeper’s liquor tax certificate is canceled, the court will '■ enjoin a superintendent of buildings from removing or causing to be removed . partitions forming bedrooms in the hotel. Such property carinot be destroyed without judgment or order of a court of competent authority. It would be - in violation of both State and Federal Constitutions.

' Cross-appeals by the plaintiff, Jacob Born, and by the defendant, Isaac A. Hopper, as superintendent of buildings for the borough of Manhattan, from portions of an order of the' Supreme Court, made óñ a motion for a temporary injunction at the Hew York Special . Term and entered in the office of the clerk of the county of Hew York on the 20th day of September, 190b,

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D. Cady Herrick, for the plaintiff. .

Terence Farley, for the defendant Hopper.

Julius M. Mayer, Attorney-General, for the respondents.

This action was brought to enjoin the defendants from interfering with the use by the plaintiff of the premises described in the complaint as authorized by chapter 697 of the Laws of 1905; and.' to enjoin and restrain the defendant Hopper, as superintendent of buildings, from removing or causing to be removed any partitions forming bedrooms in the hotel described. Upon the motion coming on, the court denied the motion to enjoin the defendant Healy, Special Deputy Commissioner of Excise,"from taking possession under chapter 697 of the Laws of 1905, and from depriving the plaintiff of the liquor tax certificate, but enjoined the defendant as superintendent of buildings from removing or causing to be removed the partitions forming bedrooms in the said building Ho. 2362 Third avenue.

We think this order should be affirmed as to the Special Deputy Commissioner of Excise on the grounds stated by the learned court at Special Term. ( 48 Misc. Rep. 177 .) There was nothing that the court could enjoin so far as the defendant Healy was concerned. He had, in pursuance to the command of the Legislature, revoked the license, and he did not threaten to do nor was he' directed to do anything further. Iff the provisions of this act are void and in violation of the Constitution, then the act of Healy in revoking the license was a void act and did not affect the plaintiff. If the act of the Legislature is valid, then the act of Healy was performed under a valid mandate of the Legislature, with which the court cannot interfere. There is nothing in the. nature of things that Healy threatened to do that could interfere with the plaintiff’s rights or require the- protection of a court of equity.

We also think that the order enjoining the defendant Hopper from interfering with the defendant’s property was correct. Whatever may be said of the power of the State to revoke a liquor tax certificate, it certainly had-no power to authorize an officer to destroy the plaintiff’s property without the judgment or order of a

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competent judicial authority; Such- an act would be in direct violation of both the Fed Oral and. State Constitutions'. (IT. S. Const. 14th amendt. § 1; State Const, art. 1, § 6.)

The order appealed from should be affirmed., without costs. - ;

O’Brien, P, J., Patterson, Laughlin and Clarke, JJ., concurred. ' . .

Order affirmed, without costs.