In re Judkins — 126 A.D. 524

Majority

p. 524

In the Matter of the Petition of Charles O. Judkins for an Order Revoking and Canceling the Liquor Tax Certificate Issued by the Treasurer of Warren County, New York, to James Bradley of the Town of Queensbury, New York, Appellant. (Certificate No. 20,383.)

Third Department,

May 6, 1908.

Headnote

Intoxicating liquors — revocation of certificate —return of order to show cause.

An order to show cause why a liquor tax certificate should not be revoked, made by a justice of the Supreme Court, returnable at a regular term of that court at the court house in a specified village at a specified date may be treated as returnable before the justice himself, as is authorized by subdivision 2 of section 28 of the Liquor Tax Law instead of before a Special Term the first day of which had expired on the return day.

Under the statute such order must be returnable either at a Special Term or before the justice, and although the justice was holding a Trial Term at the place where the order was returnable, it should be construed as naming the term merely to indicate the place he would hear the motion, especially where the respondent hasxbeen in no way prejudiced^ and upon his appearance was definitely informed-that the order.was returnable before the justice.

Smith, P. J., and Sewell, J., dissented, with opinion.

Appeal by James Bradley from an order of the Supreme Court, made at the Fulton Special Term and entered in the office of the clerk of the county of Warren on the 24th day of February, 1908, denying the appellant’s .motion to vacate an order made by a justice of the Supreme Court on the 12th day of February, 1908, and entered in. said clerk’s office on the 15th day of February, 1908, revoking a liquor tax certificate, and also to vacate the petition and order to show cause upon which the revoking order was made, with notice of an intention to bring up for review the order revoking said certificate and the order to show cause, bearing date the 5th day of February, 1908, upon which the revoking order was granted.

Charles R. Patterson, for the appellant.

Beecher S. Clother [T. D. Trumbull, Jr., of counsel], for the respondent.

The order canceling the certificate was properly made by the justice out of court. Under subdivision 2 of section 28 of the Liquor Tax Law (Laws of 1896, chap. 112, as amd. by Laws of 1906, chap. 272) a petition to revoke such a certificate may be made to a justice of the Supreme Court, a Special Term or to the county judge of the county, and the justice, judge or Special Term shall grant an order to show cause returnable before him or before a Special Term. The petition was addressed to the justice and not to the Special Term. The justice began a regular trial and Special Term of the Supreme Court at Ballston February third, which was in session February fifth, the day when the order was granted) and February-tenth, the day upon which it was returnable. The order required the appellant herein to show cause at a regular term of the Supreme Court, to be held at the court house in the village of Ballston, U. Y., on the 10th day of February, 1908, “ at ten o’clock in the forenoon, or as soon thereafter as counsel can be heard.” A copy of the petition was served with the order to show cause.

At the time when the order was returnable the appellant appeared specially and raised the objection that there was no Special Term then in session at which the motion could be heard. As the moving papers show no cause why the motion could not have been made on the first day of the term, rule 21 of the General Buies of Practice prevented a motion from being made upon any other day of the Special Term. The justice held that the order was returnable before him and not before the Special Term and required the proceedings to continue. Thereupon the appellant withdrew and the justice proceeded to hear the matter and make the order.

The order to show cause does not purport to be made returnable at a Special Term, but at a regular term of court. Under the statute it must be returnable either at a Special Term or before the justice. It was, therefore, somewhat ambiguous upon its face. I think, however, from the fact that the justice who made the order was holding a Trial Term at .the place where it was returnable, we may consider the naming of the term as an indication merely of the place where the justice would hear the motion, that is, at the court house, and at the place in the court house where the regular term of court was then in session. If the order had required the

Dissent

p. 526

relator to show cause at the court house, not stating that he was to appear before the justice or a Special Term, so long as the justice was at the court house and there was no Special Term at which the ■order could be returnable, he would be justified in overruling the objection and in treating the order as returnable before him as justice.

The appellant has been in no way prejudiced by the irregularity in the order to show cause. Upon his appearance he was definitely informed that the order was returnable before the justice and that the inquiry must proceed.

The other questions raised upon the argument have heen considered, and no reason is found for interfering with the order made. It should, therefore, be affirmed, with costs.

All concurred, except Smith, P. J., dissenting in an opinion, in which Sewell, J., concurred.

The defendant had a property right which could only be taken from him by due process of law. The order to show cause was made returnable “ at a regular term of the Supreme Court ” to be held at Ballston. Defendant’s attorney appea/red specially and objected to the regularity of the court. His contention was upheld. But the justice presiding, holding that there was no regular term of , court at which the motion could be heard, assumed to entertain the motion as one made returnable before him as a justice. The authority of defendant’s counsel had ceased and he withdrew. The order appealed from is one made on defendant’s default by a justice of the court on an order to show cause returnable at a regular term of the court. This is not “ due process of law.”

Sewell, J., concurred.

Order affirmed, with costs.