In re Stedler

This proceeding is brought for the revocation of a liquor tax certificate because the necessary consent of two-thirds of the property owners within 200 feet of the premises had not been obtained, and for the reason that the respondent in the application filed for the license made false answers touching that fact.

The petition on which the proceeding is based, together with the usual order to show cause, was presented to the court, at which time the respondent appeared by attorney and filed an unverified answer denying each and every allegation of the petition. Thereupon by and with the consent of respondent’s attorney an order of reference to take and report the evidence was made and entered. Subsequently the parties appeared before the referee, at which time counsel for the respondents moved for a dismissal of the petition and of .these proceedings, on the grounds that the petition is on information and belief, and that the material facts necessary for granting of an order are not stated other than on information and belief. The referee, however, proceeded with the hearing, and now reports the testimony and proceedings before him. The relator asks for the usual order canceling the license, while respondent’s counsel renews his objection to the proceedings and the granting of the order upon the same grounds stated before the referee. It is conceded by counsel that the evidence returned warrants an order canceling the license, provided the objection made to the sufficiency of the petition is not well taken.

The only question, therefore, to be considered is whether the objection is good. It is held that section 28 of the liquor tax law (Laws 1896, p. 69, c. 112), authorizing a citizen to commence a proceeding to

It is quite likely that the Court of Appeals in the case of Peck v. Cargill, 167 N. Y. 391 , 60 N. E. 775 , 53 L. R. A. 888 , intended to go no further than to hold that a license could not be revoked upon failure to answer where the petition was upon information and belief only. It has been subsequently held that the court gets jurisdiction of the parties and subject-matter of a proceeding under the liquor tax law sufficient to order a reference to take legal1 proof even where the petition is on information and belief. Matter of Cullinan (Gallagher Certificate) 39 Misc. Rep. 354 , 79 N. Y. Supp. 840 . Even if in the case now under consideration the respondent had the right to have objected to the sufficiency of the petition, he failed to do so, and without so doing he appeared by attorney, answered the allegations of the petition, and consented to a reference to take proof. The evidence taken before the referee supplied all the necessary positive proof required to justify the court in acting. The element of hearsay evidence was eliminated, and in its stead the court now has before it direct and positive proof sustaining the allegations of the petition. The court should cancel the, certificate in question,unless the defects in the original petition vitiate all subsequent proceedings.

Respondent’s counsel contends the defects of the petition are jurisdictional. Even conceding that the objection was good if it had been made in time, nevertheless, in this proceeding, the record shows the respondent appeared and answered and consented to a reference. In other words, this action on his part is tantamount to a consent to the court’s taking jurisdiction. By these acts he in effect waived the right to insist on the insufficiency of the petition. Matter of Cullinan (Micha Certificate) 76 App.. Div. 363 , 78 N. Y. Supp. 466 , affirmed 173 N. Y. 610 , 66 N. E. 1106 . As was stated in the case last cited, a party may waive a rule of law or statute, or even a constitutional provision enacted for his benefit or protection,- where it is exclusively a matter of-private right, and no consideration of public policy or morals are involved; and, having once done so, he cannot subsequently revoke its protection—citing Sentenis v. Ladew, 140 N. Y. 463 , 466, 35 N. E.

If the respondent wished to insist on the defects of the petition, he should have raised the question as to its sufficiency when called on to ánswer. Instead, he not only answered without even suggesting the defects in his answer, but he consented to the order of reference. When the matter came on for hearing before the referee, the question was then raised for the first time. We think it was then too late, and, as the evidence returned concededly justifies the granting of the order of revocation, the relator is entitled to it, and also to the amendment to his petition making it conform to the proof.

Let such an order be entered, with costs of the proceeding.