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People ex rel. Ruppert v. Clement

139 A.D. 508 Court First Department, Decision date 1910-07-07 English

Delivered by Clarke, J.:

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p. 508
The People of the State of New York ex rel. Jacob Ruppert, Appellant, v. Maynard N. Clement, as State Commissioner of Excise of the State of New York, Respondent.
First Department,
July 7, 1910.

Headnote

Liquor Tax Law — surrender of certificate — rebate — violation of statute . by employee.
Where a.complaint against an employee of the holder of a liquor tax certificate was dismissed by'the grand jury, said alleged violation may not be shown as a bar to a proceeding by the holder of the certificate to obtain a peremptory writ of mandamus directing the payment of a rebate on the certificate.
Appeal by the relator, Jacob Kuppert, 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 26th day of May, 1910, denying the relator’s motion for a peremptory writ of mandamus to compel the defendant to prepare orders for the payment of a rebate on a liquor tax certificate.
D-Cady Herrick of counsel {Ashbel P. Fitch, Mott & Grant, attorneys], for the appellant.
Frederick W. Stelle. of counsel {Herbert H, Kellogg, attorney], for the respondent.

This case presents the same point discussed and decided in People ex rel. Haffen Brewing Co. v. Clement ( 139 App. Div. 502 ), opinion handed down herewith, with this exception : Iii the case at bar the petition alleged that James Hogan, an employee of the certificate holder, was arrested on a charge of unlawfully; violating the provisions of said Liquor Tax Law and that said complaint was dismissed by the grand jury and a certificate of dismissal under the-seal of the Court of General Sessions of the Peace was attached: .Upon the authority of People ex rel. Fallert Brewing Co. v. Lyman ( 53 App. Div. 470 ; affd., 168 N. Y. 669 ) and People ex rel. Stevenson Co. v. Lyman ( 69 App. Div. 406 ) this action by the grand jury is equivalent to an acquittal.

The order appealed from should, therefore, be reversed, with ten

p. 509
dollars costs and disbursements, and a peremptory writ of mandamus granted, with ten dollars costs.

Ingraham, P. J.¡ Lahghlin, Scott and Miller; JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.

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