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In re Farley

164 A.D. 802 Court First Department, Decision date 1914-12-04 English

Delivered by Laughlin, J.:

Contents

Majority

p. 802
In the Matter of the Petition of William W. Farley, as State Commissioner of Excise, for an Order Revoking and Canceling Liquor Tax Certificate No. 1807, Issued to Charles Cardow. William W. Farley, as State Commissioner of Excise of the State of New York, Appellant; Charles Cardow, Respondent.
First Department,
December 4, 1914.

Headnote

Intoxicating liquors — criminal prosecution and conviction of employees for sale of liquors during prohibited hours not a bar to a civil proceeding for the cancellation of the certificate on the ground that the premises had become disorderly.
The fact that a liquor tax certificate has been forfeited under the provisions of subdivisions 3 and 8 of section 36 of the Liquor Tax Law by two convictions of employees for selling liquor during prohibited hours does not oust the court of jurisdiction in a civil proceeding for the cancellation of the certificate on the ground that the premises had become disorderly in violation of section 30 of the Liquor Tax Law.
Appeal by the petitioner, William W. Farley, as State Commissioner of Excise, 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 10th day of August, 1914, denying his application herein.
C. R. O’Connor [Louis M. King with him on the brief], for the appellant.
P. A. McManus, for the respondent.

On the 13th day of September, 1913, the liquor tax certificate in question was duly issued to the respondent Cardow, authorizing him to traffic in liquor under the provisions of subdivision 1 of section 8 of the Liquor Tax Law, at No. 105 West Sixteenth street, borough of Manhattan, New York, for the excise year ending September 30, 1914. On the 18th day of May, 1914, the petitioner obtained an order requiring

p. 803
Cardow to show cause why the certificate should not be revoked on the ground that he had permitted the premises to become disorderly in violation of section 30 of the Liquor Tax Law. (Consol. Laws, chap. 34 [Laws of 1909, chap. 39], § 30, as amd. by Laws of 1910, chap. 494.) The petition charged, among other things, that the holder of the certificate wrongfully and unlawfully suffered and permitted the premises to become and remain disorderly on the 3d, 9th, lJth and 25th days of April, 1914. On the hearing at Special Term these charges were fairly established and the testimony of the agents of the Excise Department, showing that the premises were disorderly on the dates specified, was not materially controverted. The proceeding was dismissed on the 10th day of August, 1914, on the ground that the certificate had already been forfeited under the provisions of subdivisions 3 and 8 of section 36 of the Liquor Tax Law (as amd. by Laws of 1910, chap. 485), by two convictions of employees of the respondent of violations of the Liquor Tax Law for selling liquor on the licensed premises during prohibited hours. One of these convictions was on the 20th day of March, 1914, and the other on the 12th day of June, 1914.

By virtue of the provisions of subdivision 3 of section 36 of the Liquor Tax Law (as amd. supra), the certificate was forfeited upon the second criminal conviction, which was had before the termination of this proceeding. We are of opinion that the learned justice before whom the case was heard at Special Term erred in deciding that the forfeiture of the liquor tax certificate ousted the court of jurisdiction in this civil proceeding for the cancellation of the liquor tax certificate. The provisions of the Liquor Tax Law with respect to a civil proceeding for the cancellation of the certificate and with respect to criminal prosecutions, and the effect thereof on the liquor tax certificate, are independent of one another. The civil proceeding for the cancellation of the certificate is authorized by subdivision 2 of section 2Y of the Liquor Tax Law (as amd. by Laws of 1910, chap. 503), and it is therein expressly provided that a criminal prosecution and conviction shall not be a condition precedent to the granting of an order revoking and canceling the certificate for any violation of the Liquor Tax

p. 804
Law. The right of the petitioner to have' the liquor tax certificate canceled depends upon the facts existing at the time the proceeding is instituted. (Matter of Van Vleck v. Coonan, 2 Liquor Tax Law Rep. 330; Matter of Lyman, 28 Misc. Rep. 408 ; affd., 48 App. Div. 275 ; Matter of Schuyler, 32 Misc. Rep. 222 ; Matter of Howard, 66 N. Y. Supp. 1133 .) In Matter of Lyman (supra) this court held that an order revoking and canceling a liquor tax certificate relates back and takes. effect as of the date when the petition was filed and that the certificate could be canceled notwithstanding the fact that the period for which it had been issued had expired prior to the decision on the application. It will be observed that the forfeiture of the liquor tax certificate by the criminal convictions was on account of violations other than those charged in the petition, and that the State Commissioner of Excise was not a party to the criminal prosecutions and could have no voice therein. Although the only relief demanded and that can be decreed by the court in such a proceeding is for the revocation and cancellation of the liquor tax certificate, together with costs, that is not the only effect of the order. The Legislature has declared that where a liquor tax certificate is canceled by the court as the result of such a proceeding as this upon the ground, among others, that the premises have been suffered or permitted to become disorderly, a disqualification shall attach to the premises and that no liquor tax certificate for trafficking in liquor thereon shall thereafter be issued for the period of one year from the date of the entry of the final order canceling the certificate. (Liquor Tax Law, § 15, subd. 8, as amd. by Laws of 1912, chap. 378; Matter of Cullinan [Nicolya Certificate], 104 App. Div. 205 ; affd., 185 N. Y. 546 .). It was the duty of the court, therefore, to dispose of the application on the merits. In the view taken of the case by the learned justice at Special Term, he did not deem it necessary to determine the facts with respect to the alleged violation, but, as already observed, the evidence of the violation is clear, and the petitioner was, therefore, entitled to an order revoking and canceling the liquor tax certificate (Liquor Tax Law, § 27, subd. 2, as amd. by' Laws of 1910, chap. 503), and, consequently, it is unnecessary
p. 805
to send the case back for further hearing or for a decision on the merits.

It follows that the order should be reversed, with ten dollars costs and disbursements, and an order should be entered granting the prayer of the petition revoking and canceling the liquor tax certificate as of the date the proceeding was instituted, with fifty dollars costs to the petitioner.

Ingraham, P. J., Scott, Dowling and Hotchkiss, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and order entered as directed in opinion, with fifty dollars costs to petitioner. Order to be settled on notice.

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