In re Lyman — 44 A.D. 507

Majority

p. 507

In the Matter of the Petition of Henry H. Lyman, State Commissioner of Excise, Appellant, for an Order Revoking and Canceling Liquor Tax Certificate No. 29,661, Issued to Raffaele Salatino, Respondent.

Headnote

Liquor tax certificate—forfeited only ‘upon conviction of a violation of the Excise Law.

A liquor tax certificate can be forfeited, for a violation of the Excise Law by the licensee, only upon conviction for such offense; in the absence of such conviction a proceeding for the revocation of the certificate cannot be maintained.

Appeal by the petitioner, Henry H. Lyman, State Commissioner of Excise, from an order of the Supreme Court, made at the Kings

p. 508

County Special Term and entered in the office of the clerk of the county- of Kings on the 12th day of May, 1899, denying his application for an order revoking and canceling the' liquor tax certificate of Rafiraele Salatino.

This proceeding was begun upon the ground that the respondent, having a license which only permitted him to sell liquors, no part of which was to her drunk upon , the premises, violated the Excise Law by selling liquor to persons who drank upon the premises. It did not appear that any criminal proceedings had been instituted against the respondent.

W. E. Schenck, for the appellant.

Louis J. Somerville, for the respondent.

The only ground- on which it was sought to have the respondent’s license revoked was that he had violated the Excise Law in selling- liquor to be drunk on the premises without a license or liquor tax certificate authorizing such sale. In Matter of Lyman ( 160 N. Y. 96 ) the Court of Appeals has held that a liquor tax certificate can be forfeited for a violation of law by the holder only upon conviction for such offense, and not in a summary investigation before a justice of this court or a magistrate. It follows that this proceeding cannot be maintained.

The order appealed from should be affirmed, with ten dollars costs, and disbursements. v

All concurred.

Order affirmed, with ten dollars costs and disbursements.

Cases cited

In re Lyman 160 N. Y. 96 N.Y. 1899-10-03 p. 508