In re to Revoke & Cancel a Liquor Tax Certificate No. 14,685

Majority

p. 111

In the Matter of an Application to Revoke and Cancel a Liquor Tax Certificate No. 14,685, Granted to Bernard E. McCusker, doing Business under the Firm Name of Arthur McCusker & Son, at Nos. 60 and 62 Division Street, Troy, N. Y. Bernard E. McCusker, Appellant; Charles H. McCusker, Respondent.

Headnote

I/iquor tax certificate — what is “a building occupied exclusively as a church" — the doctrine of res ad judicata not applicable, where a decision was made on stipulated facts. >

A two-story building, the upper story of which is used exclusively for the religious services of. a Jewish congregation, and the lower story óf which is used for its Sunday school and also as a meeting place of three benevolent societies, the membership of which is limited to people of Jewish birth, but not necessarily to members of that particular congregation, each of which societies pays rent to the church which is used in its support, is “ a building • occupied exclusively as a church’’ within the meaning of subdivision 3 of section 34 of the Liquor Tax Law (Laws of 1896, chap. 113).

A proceeding for the revocation of a liquor tax certificate instituted by a citizen of the State under section 38 of the Liquor Tax Law upon a stipulated statement of facts, on the ground that the building in which the traffic was conducted was within 300 feet of the church, which results in the denial of the application, is not a bar to a.proceeding instituted by another citizen upon the same ground for the revocation of a subsequent certificate covering the same premises, where no such stipulation is made.

Parker, P. J., dissented. .

p. 112

Appeal by Bernard E. McCusker from an order of the. Supreme Court, entered in the office of the clerk of the county of. Rensselaer on the 25th day of September, 1899, revoking and canceling the liquor tax certificate granted by John Don, as county treasurer of Rensselaer county, to said Bernard E. McCusker.

James E. Cooley, for the appellant.

P. C. Dugan, for the respondent.

The appellant’s building in which he was authorized by the liquor tax certificate, revoked and canceled by the order appealed from, to traffic in liquors, and in which he carried on such traffic, is situate on the west side of Third street in the city of Troy, and is separated by less than three feet from the 2 Berith Sholora Temple,” a Jewish synagogue, situate on the same street, and the distance from the center of the nearest entrance of the one to the center of .the nearest entrance to the other is less than 200 .feet. At the date of the passage.of the Liquor Tax Law, March 23, 1896, the building in which the appellant traffics in liquors was not lawfully occupied for a hotel, nor was it a place in which such traffic in liquors was lawfully carried on at that date, and in the latter particular the appellant’s application for the certificate was not true. The certificate was granted to him in violation of subdivision 2 of section 24 of the Liquor Tax Law (Chap. 112, Laws of 18'96), if the synagogue was “ a building occupied exclusively as a church.” The Special Term found that, it was so used, and we are asked to review this finding of fact. The church building has been occupied as a church for-thirty years. It consists of two floors or stories, the upper story being used exclusively for the .religious services of the church, and the lower story for the Sunday school of the church, and also as the meeting place of three lodges, namely, the Free Sons of Israel, the Kesher Shel Barshel and the Independent Order of Benai Berith. These are benevolent societies of a fraternal character, having some features of insurance or pecuniary aid in case of need, with educational and moral helps or incidents. The membership is exclusively limited to those who are Jews by birth, but not necessarily members of this church or congregation. They usually hold weekly

p. 113

meetings, each at a separate time.from the other, and each pays the church some rent which is devoted to its support. When the church was built this lower story was fitted for the accommodation of such societies, and with the view of deriving some revenue from them. While not dependent upon the church, or subject to it, they are helpful to it, and their existence, methods and usefulness are in harmony with its faith and teachings, and they enjoy its favor. The tie which binds these collateral societies to the church itself seems to be partly a community of religious faith, and partly of mutual helpfulness in temporalities. The rule of construction adopted by the courts in such cases favors the churches, and not the traffickers in liquor. (Matter of Place, 27 App. Div. 561 , and cases cited at page 568.) We think it would be a harsh and unwarranted construction which would deprive this church of the protection of the statute, simply because the scheme of its usefulness is broad enough to embrace such societies composed of persons born within its faith, although all of them do not actually worship within its temple. • It is, no doubt, open to them when they wish to do so.

A proceeding similar to this was instituted by one Holden to revoke and cancel the liquor tax certificate issued to the appellant in 1898, upon the ground that the building in which he trafficked in liquors was within 200 feet of the church. The application was denied. (Matter of McGusker, 23 Misc. Rep. 446 .) The order in that case is no bar to this. The certificate is not the same; the applicant is not the same; the facts stipulated in that case took the appellant’s place of business out of the prohibition of the statute; such a stipulation is not here made. Any citizen of the State may make .the application. (Liquor Tax Law, § 28.) If a proceeding by one petitioner upon a stipulated state of facts could bar every other petitioner from proceeding upon a proved state of facts, the' temptation to an early and collusive proceeding would be great. We do not think the earlier proceéding was collusive, but the rule invoked, if sanctioned, would invite collusion.

The order is affirmed, with costs.

All concurred, except Parker, P. J., dissenting.

• Order affirmed, with ten dollars costs and disbursements.

Cases cited

In re Liquor Tax Certificate No. 14,111 23 Misc. Rep. 446 N.Y. Sup. Ct. 1898-05-04 p. 113