In re Farley — 170 A.D. 400

Majority

p. 400

In the Matter of the Petition of William W. Farley, as State Commissioner of Excise, Appellant, for an Order Revoking and Canceling Liquor Tax Certificate No. 4,874, Issued to Christian Vorndran, Respondent.

First Department,

December 3, 1915.

Headnote

Intoxicating liquors — notice of abandonment—failure to file new notice of abandonment transferring traffic from other premises — revocation of new license — who may execute notice of abandonment.

Under section 8, subdivision 9, of the Liquor Tax Law, as amended, providing that no liquor tax certificate may be issued in any borough, unless or until the ratio of population therein to the number of certificates issued under subdivision 1 of said section.shall be greater than 750 to 1, an owner of premises in a borough where the ratio is 518 to 1, a certificate for which haS been transferred by a notice of abandonment, cannot lawfully traffic in liquors thereon under a new license, until he has filed a new notice of abandonment transferring the traffic from some other licensed premises to his own.

Under such conditions the new license may be revoked.

The exception contained in subdivision 9 of section 8, providing that the higher ratio prohibition shall not apply to any such traffic in liquors as was lawfully carried on at some time within one year immediately preceding the passage of this act, provided such traffic was not abandoned thereat during said period, does not aid the owner.

The facts that after the filing of a notice of abandonment no new license was issued for the remaining period of the old term to the transferred premises, and that the license remained displayed in the original premises, do not affect the validity of the abandonment.

p. 401

An assignee of an attorney in fact of the holder of a liquor tax certificate having authority to consent to a transfer thereof, may execute a notice of abandonment.

The right to give a notice of abandonment resides in the owner and holder of the liquor tax certificate, and not in the owner or lessee of the premises in possession thereof.

Appeal by the petitioner, William W. Farley, as State Commissioner of Excise, from an order of the Supreme Court, made at the Bronx Special Term and entered in the office of the clerk of the county of Bronx on the 9th day of September, 1915, denying his motion to revoke a liquor tax certificate.

Louis M. King, for the appellant.

J. Wilson Bryant, for the respondent.

This proceeding is brought to revoke and cancel the liquor tax certificate issued to Christian Vorndran for trafficking in liquors at the premises No. 316 East One Hundred and Fiftieth street, borough of The Bronx, city of New York, for the term commencing October 1, 1914, and ending September 30, 1915.. Vorndran owned the premises in question, in which a liquor business had been conducted for nearly thirty years. On September 23,1913, a certificate for the premises was issued to Valentine Berninger for the excise year 1913-1914, which was assigned to the J. & M. Haffen Brewing Company as collateral security for money loaned, the assignment being duly filed. On February 3, 1914, this certificate was transferred by Berninger to John A. Orimins, who also assigned it to the same brewing company as collateral security, this assignment also being duly filed. Thereafter the brewing company duly assigned its interest in the certificate to Jacob Ruppert, a corporation, which on September 29, 1914, acting as attorney in fact for Orimins, duly filed a notice of abandonment of the traffic in liquors at these premises in favor of the premises No. 384 to 386 East One Hundred and Thirty-third street, in the same borough, such notice being filed during the unexpired term of the Orimins certificate and executed by his attorney as required by subdivision 9 of section 8 of the Liquor Tax Law.

p. 402

The important part of the notice of abandonment reads as follows: “I, John A. Crimins, holder of liquor tax certificate No. 3617, by Jacob Buppert, his duly authorized attorney, issued under the provisions of subdivision one of section 8 of the Liquor Tax Law, for traffic in liquors at premises situate at 376 East 150th Street, in the Borough of Bronx, County of Bronx, Staté of New York, which certificate is now in full force and unexpired, and has not been surrendered for rebate, do hereby abandon the traffic in liquors under the provisions of subdivision one of section 8 of said law, at the premises above described, with the intention that such traffic in liquors may be carried on 'at premises situate at 384-386 East 133rd St., in the Borough of Bronx, County of Bronx, State of New York. Said certificate was transferred on the 3rd day of February, 1914, to John A. Crimins, and said certificate was assigned by said John A. Crimins to Jacob Buppert on the 3rd day of February, 1914, pursuant to the provisions of section 26 of the Liquor Tax Law.^[1] ” Donato Ohristiano already had a license to traffic in liquors at 386 East One Hundred and Thirty-third street, being the store at the comer of Willis avenue and East One Hundred and Thirty-third street. He desired to have an additional license to cover a separate bar in 384 East One Hundred and Thirty-third street, for which, as he says, he desired to have a license in reserve. As a matter of fact, however, no new certificate under the notice of abandonment and consent to transfer was issued for the remaining two days of the life of the Crimins certificate, namely, September twenty-ninth and thirtieth, and a liquor tax certificate covering said easterly bar was not issued until September thirtieth for the year 1914-1915, and such certificate was a new certificate and covered no part of the preceding term.

The relator has offered testimony to show, that the Crimins license never was in fact removed from the One Hundred and Fiftieth street premises, either on September 29 or September 30, 1914, and that beer was delivered to said premises on September twenty-ninth. He has not, of course, attempted to prove that business was actually done therein, in contradiction of the notice of abandonment, the sole force of which testi

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

p. 403

mony, if offered, would have been, to show that the law had been violated, and not to destroy the effect of the notice of abandonment. Crimins was not then in possession of the store. Vorndran and Wertman, who is termed his partner, had been in possession since June 18, 1914. A new liquor tax certificate for the year 1914-1915 on the premises 376 East One Hundred and Fiftieth street was issued to Christian Vorndran on September 15, 1914.

The importance of this proceeding to the respondent lies in the fact that under section 8, subdivision 9, of the Liquor Tax Law (Consol. Laws, chap. 34; Laws of 1909, chap. 39), as added by chapter 494 of the Laws of 1910, and amended by chapter 298 of the Laws of 1911, no liquor tax certificate may be issued in any borough unless or until the ratio of population therein to the number of certificates issued under subdivision 1 of said section 8 shall be greater than 750 to 1, and then only pursuant to the provisions of this subdivision. It appears that the ratio in the borough of The Bronx at the time in question was 518 to 1. The same subdivision further provides that after the filing of a notice of abandon- • ment it is “unlawful to so traffic in liquors in the premises described in such notice as the premises in which the traffic in liquors has been abandoned, unless there shall subsequently be filed another notice of abandonment, in the maimer herein provided, which notice shall describe such first abandoned premises as the premises in which it is intended to again carry on such, traffic in liquors.” (See, also, Laws of 1915, chap. 654, amdg. said § 8, subd. 9.) Therefore, before Vorndran could lawfully traffic in liquors at 376 East One Hundred and Fiftieth street under his new license for 1914-1915, it was necessary for him to file a new notice of abandonment transferring the traffic in liquors from some other licensed premises to his own, which he failed at any time to do. Nor does the exception contained in the said subdivision providing that the higher ratio prohibition “ shall not apply to any premises in which such traffic in liquors was lawfully carried on at some time within one year immediately preceding the passage of this act” help the respondent because of what immediately follows, “ provided such traffic was not abandoned thereat during the

p. 404

said period.” Under these conditions there can be no alternative save to grant, the petition of the State Commissioner of Excise for the revocation and cancellation of Vorndran’s license for 1914-1915. The respondent contends that the notice of abandonment was a nullity because it was not executed by the attorney in fact of Crimins but by the assignee of such attorney, and because no new license was issued for the remaining two days .of the 1913-1914 term to the transferred premises, and the license remained displayed in the original premises. I do not think any of these contentions is well founded. Jacob Ruppert, a corporation, by the assignment from the Haffen Company (to which Crimins, the certificate holder, had himself assigned the certificate) and under its express provisions became the attorney in fact of the certificate holder, and was specifically authorized thereby to have the said liquor tax certificate issued for said premises transferred to any premises other than those mentioned in said certificate, and to execute, acknowledge and deliver for it, and in its name, place and stead, a notice or notices stating that the traffic in liquors is abandoned in said premises. The same power to consent to a transfer of the certificate to the premises is contained in the assignment from Crimins to the Haffen Company, which also constituted said company his attorney in fact, with .full power of substitution. The sole question remaining, therefore, is whether the right to give notice of the abandonment of the liquor business in licensed premises resides in the person in possession of the premises, either as owner or lessee, or to the owner and holder of the liquor tax certificate. It has been expressly held that such right resides in the latter only. (Matter of Farley [Bales Certificate], 154 App. Div. 282 ; affd. on opinion below, 208 N. Y. 595 .) It follows, therefore, that the order appealed from is reversed, and the application to revoke liquor tax certificate No. 4,814, issued to the respondent Vorndran for the year 1914-1915, is granted, with costs to the petitioner.

Ingraham, P. J., McLaughlin, Laughlin and Scott, JJ., concurred.

Order reversed, with costs, and application granted, with costs.