People ex rel. Spang v. Carey — 167 A.D. 949

Majority

p. 949

The People of the State of New York ex rel. Peter Spang Respondent, v. William J. Carey, Special Deputy Commissioner of Excise for the County of Monroe, New York, and William W. Farley, as State Commissioner of Excise of the State of New York, Appellants.

Headnote

Intoxicating liquors — attempted transfer of rights under liquor tax certificate — certificate not in existence.

Appeal by the defendants from an order granted by Mr. Justice Clark and entered in the Monroe county clerk’s office on the 24th day of November, 1914, directing defendant Carey, as Special Deputy Comm is. sioner of Excise, to issue a liquor tax certificate to relator Spang for premises 429 Main street, West, in the city of Rochester.

The agreement of September 11,1913, did not vest in the brewing company title to the liquor tax certificate thereafter on September seventeenth issued to Schiano. It was not an assignment of the certificate “ as collateral security for moneys loaned or any other obligation incurred,” within section 12a of the Liquor Tax Law; nor was it a sale of the certificate within section 26.^[2] Its intent and purpose seem to have been to leave the title in Schiano, but to give the brewing company all the surrender, abandonment, transfer and renewal rights. If intended as an assignment it did not pass title as the certificate was not then in existence. (Anchor Brewing Co. v. Burns, 32 App. Div. 272 ; Rochester Distilling Co.

* Added by Laws of 1910, chap. 494, as amd. by Laws of 1911, chap. 398.— [Rep.

p. 950

v. Rasey, 142 N. Y. 570 .) The agreement of September 16,1914, executed by the brewing company in the ñamé of Sehiano by virtue of the power of attorney contained in the prior agreement, is in the same form, and for the same reasons did not vest in the brewing company title to the new liquor tax certificate issued to Sehiano on his application September 15, 1914, for the ensuing year. The certificate was then in existence, but the instrument did not transfer the title. If it can be construed as intending to pass the title, that intent could be effectuated only by presenting the certificate to the Deputy Commissioner of Excise and having his consent to the transfer indorsed thereon, as provided in section 36 of the Liquor Tax Law. As this agreement did not purport to assign the certificate as collateral security, no consent of the brewing company was necessary to accompany the notice of abandonment and petition to transfer filed by Sehiano on October 1,1914, under subdivision 9 of section 8 of the act.^[3] The Deputy Commissioner of Excise having no authority or jurisdiction to determine equitable or contract rights in reference to the certificate not affecting the legal title, we think he properly allowed Sehiano to abandon the premises for which said certificate was issued and to transfer the certificate to other premises and to the assignee Martone, pursuant to sections 35 and 36 of the act.† Traffic ih liquors having thus been abandoned at said premises the Deputy Commissioner of Excise was prohibited by the express terms of subdivision 9 of section 8 of the statute from issuing to relator another certificate for the same premises, and hence, he was right in refusing to grant relator’s application. The order appealed from is reversed, and the writ of certiorari dismissed, with costs. All concurred. Order reversed and writ of certiorari dismissed, with costs. Order entered ñuño pro tuno as of the date of argument and submission of the appeal, viz., January 33, 1915. Motion to substitute executors in place of relator, deceased, denied, without prejudice to an application for substitution in the court below, if so advised.

† † Amd. by Laws of 1911, chap. 407.—[Rep.

Footnotes

* Consol. Laws, chap. 34 (Laws of 1909, chap. 39), § 12a, added by Laws of 1912, chap. 263; Id. § 26, as amd. by Laws of 1911, chap. 407.— [Rep.

Cases cited

Rochester Distilling Co. v. Rasey 142 N. Y. 570 N.Y. 1894-06-05 p. 950