In re Plass — 71 A.D. 488

Majority

p. 488

In the Matter of the Petition of Norman Plass, Appellant, for an Order Revoking and Canceling Liquor Tax Certificate, No. 22,124, Issued to Elsie M. Clark, Respondent.

Headnote

Revocation of a liquor tase certificate — order of reference to report the evidence with the referee’s opinion — when the dismissal of the proceeding, in an order confirming the report, is the act of the court — Hinds and opaque glass in the premises—proof of violation not charged in the petition — amendment thereof.

Where, in a proceeding for the revocation of a liquor tax certificate, the court, on the motion of the petitioner’s attorney, makes an order of reference directing the referee to report the evidence to the court together with his opinion thereon, the petitioner cannot successfully urge, upon an appeal from a .final" order dismissing. the proceeding, that ‘the court had no power to direct an expression of opinion by the referee.

Where the final order, in addition to confirming the report, denies the prayer of the petitioner and dismisses the proceeding with costs," that provision of the final order which confirms the referee’s report will be disregarded as surplus-age and the dismissal "be held to be the action of the judge at Special Term, independent of the referee’s opinion.

The fact that there are blinds on premises in which liquor is sold or that there are panes of opaque glass therein does not constitute a violation of subdivision h of section 31 of the Liquor Tax Law (Laws of 1896, chap. 112, as amd. by chap. 312 of the Laws of 1897), provided outsiders may still have a full view of" the inside of the premises.

Under subdivision 2 of section 28 of the Liquor Tax Law, as amended by chapter 367 of the Laws of 1900, which requires the petition for revocation to “state the facts upon which such application is based,” no charges can be considered" Upon the hearing except 'such as are. contained, in the petition as" originally framed or such .as may properly be introduced by. amendment, in the course of"’ the proceedings. ■

If, upon the hearing of the application,, evidence is given of violations of the Liquor Tax Law, not alleged in the petition, the remedy of the applicant is-by a motion at Special Term to amend the petition so as to conform to the proof. In the absence of such an amendment, the Appellate Division cannot amend the petition or deem it to be amended for the purpose of reversing an order-dismissing the proceeding.

Appeal by the petitioner, Horman Plass, from a final order of the Supreme Court, made at the Kings County Special Term, and entered in the office of the clerk of the county of Rockland on the 24th day of June, 1901, in a special proceeding instituted for- the purpose of revoking and canceling a liquor "tax certificate issued to Elsie M. Clark.

p. 489

Elbert B. Hamlin, for the appellant.

A. S. Tompkins, for the respondent.

This is a special proceeding, instituted by the petition of Norman PI ass for the revocation of a liquor tax certificate issued to Elsie M. Clark. The court at Special Term refused to revoke the certificate and dismissed the petition, and the petitioner now appeals.

The evidence was taken before a referee under an order which directed the referee to report such evidence to the court, together with his opinion thereon. The appellant contends that an order of reference directing an expression of opinion by the referee is not authorized by the Liquor Tax Law (Laws of 1896, chap. 112, § 28, subd. 2, as amd. by Laws of 1900, chap. 367)), and that the final order should be reversed because in "terms it confirms the referee’s report. As to this point it may be observed, in the first place, that the order of reference was granted in the form in which it appears in the record, upon the motion of the attorney for the appellant himself. In the second place, that part of the final order which confirms the report may be disregarded as surplusage. The order does more than simply confirm the referee’s report; it denies the prayer of the petition for revocation, dismisses the proceeding, and awards costs and disbursements, which amount to $161.19, to the respondent. These adjudications distinctly appear to be made upon the “ testimony taken before said referee.” ' Hence the dismissal is the action of the learned judge at Special Term, quite independent of the referee’s opinion.

The appellant claims to have established violations of the Liquor Tax Law on the part of the respondent in respect to (1) opaque glass and* blinds, (2) fire escapes, (3) the area of dining room and kitchen, and (4) the prescribed number of bedrooms on the respondent’s premises. The only one of these violations charged in the petition is that relating to opaque glass and blinds. The Liquor Tax Law makes it unlawful to “have during the hours when the sale of liquor is forbidden any screen or blinds, or any. curtain or article or thing covering any part of any window, or to have in any window or door any opaque or colored glass that obstructs, or in any way prevents a person passing from having a full view from the side

p. 490

walk, alley, or road in front of, or from the side, or end of the "building, of the bar and room, or any part of such bar and room, in such building where liquors are sold or kept for sale.” (Laws of 1896, chap. 112, § 31, subd. li, as amd. by Laws of 1897, chap. 312.)

While there was evidence of the presence of opaque glass and blinds, it did not appear that they interfered with the view of the interior contemplated by. the statute. The fact that there are blinds on the premises, or that there are panes of opaque glass, does not constitute a violation of the statute, as we understand it, provided outsiders may still have a full view of the inside of the premises. Matter of Henry ( 56 App. Div. 268 ), cited by the appellant, was decided on this construction of the law. There it clearly appeared that there was cabinet work in the window, and" yet it was held that the court at Special Term was justified in refusing to revoke the certificate by evidence that this cabinet work was so constructed that the barroom could névertheless be seen.

The other violations were not mentioned in the petition, but the appellant insists that they were established by testimony elicited from the respondent herself, which came in without objection. It is argued that the court is not bound by allegations of specific violations contained in the petition, as in the case of pleadings, but may and should consider any violations of the law as shown by the evidence, particularly if those violations are made to appear by the testimony of the. holder of the certificate. But the Liquor Tax Law requires the petition for revocation to “ state the facts upon which such application is based.” (Laws of 1896, chap. 112, § 28, subd. 2, as amd. by Laws of 1900, chap. 367.) We think that this requirement implies that no charges are to be considered upon the hearing except such as are contained in the petition as originally framed, or such as may properly be introduced by amendment in the course of the proceeding. If this were otherwise no reason could exist for requiring any fact whatever to be alleged in the petition.

There is an averment in the answer, in addition to the denial therein contained, that the respondent is entitled to hold her liquor tax certificate, and it is suggested that this broadened the issues so as permit the revocation for violations not charged in the petition. We do not think so. It is merely a statement of a conclusion of law, which does not alter the rule or change the burden of proof.

p. 491

The proper course for the appellant to have pursued in this case, in order to render available the evidence of violations of the Liquor Tax Law not alleged in the petition, would have been to move at Special Term to amend the petition so as to conform to the proof. After such amendment, if the proof was as conclusive as the appellant contends it is, the court would doubtless have revoked the certificate, or a refusal to do so would have required a reversal here. An appellate court, however, cannot amend the petition, or deem it amended, so as to conform to the proof, for the purpose of reversing the order appealed from. There is nothing to prevent the petitioner from making these alleged violations the basis of another proceeding.

The order should be affirmed, without costs of this appeal.

All concurred.

Order affirmed, without costs.