In re Schopp — 21 N.Y. Crim. 188

Majority

p. 188

SUPREME COU-RTAPP. DIVISION—FISRT DEPARTMENT,

May, 1907.

MATTER OF ADAM A. SCHOPP IN RE DANIEL J. BRESLIN.

(119 App. Div. 192.)

Headnote

Liquor Tax Law—Petition to Revoke Certificate—Allegation that Petitioner Owns Real Property Sufficient.

In a taxpayer’s action, instituted under subdivision 2 of § 28 of the Liquor Tax Law to revoke a liquor tax certificate,' the fact that the petitioner is a taxpayer is sufficiently set forth by an allegation that he owns real property in this State.

Appeal by Daniel J. Breslin from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of January, 1907, denying his motion to dismiss the proceeding and directing a reference.

E. 8. Booth, for the appellant.

Maurice Fitz Gerald, for the respondent.

This proceeding was instituted under.- section 28, subdivision 2, of the Liquor Tax Law,^[1] upon the petition of Adam A. Schopp. An order to show cause was issued, returnable at Special Term December 19, 1906. The respondent, Breslin, appeared and made a motion to dismiss the proceeding on the ground of the insufficiency of the moving papers. The petitioner moved for the appointment of a referee to take proofs in support of the allegations of the petition. The court denied the motion to dismiss and granted the motion of the petitioner to refer. It is now conceded by all the parties represented upon this appeal that the court was without warrant of law to order

* See Laws of 1896, chap. 112, § 28, subd. 2, as amd. by Laws of 1905, chap. 680, and Laws of 1906, chap. 272.—[Rep.

p. 189

a reference, and that the order in that respect must be reversed.

The right of the petitioner to institute this proceeding is purely statutory. It is provided by section 28 of the Liquor Tax Law that “ Any taxpayer of the city, village or town for which ” the liquor tax certificate sought to be revoked was issued, may institute and maintain á proceeding for the revocation of the liquor tax certificate, for the reasons set forth in the act. The petition here contained the following allegation: “ That your petitioner is the owner of the property Ho. 303 East 12th Street, in the Borough of Manhattan, City of Hew York,” and “ That your petitioner is a citizen of the State of Hew York, a resident of the Borough of Manhattan, City of Hew York, and resides within 200 feet of Ho. 190 Second Avenue, in the Borough of Manhattan, City of Hew York.” It is clear that the allegation of the petition is in full compliance with the statute, in that the petitioner shall be a resident of the city in and for which the certificate is sought to be revoked. It is, however, contended that there is a failure to make it appear that the petitioner is a taxpayer of the city. In this we do not concur. It is alleged that the petitioner is the owner of real estate, which .gives rise to the presumptive fact that he is a taxpayer. It is a traversable fact, and if it is disclosed upon the trial, after issue joined, that the petitioner is not a taxpayer, then the proceeding may be dismissed. We hold that the allegation is adequate to authorize proof upon that issue.

That part of the order directing a reference is reversed, and in other respects affirmed, without costs of this appeal or in the court below. The respondent may serve an answer, if he is so advised, within ten days.

Patterson, P. J., Ingraham, Clarke and Houghton, JJ., concurred.

Order modified as directed in opinion, without costs, with leave to respondent to answer as stated in opinion.