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In re Clement

111 N.Y.S. 1073 Court N.Y. Sup. Ct. English

Delivered by CRANE, J.

Contents

Majority

p. 1073
(58 Misc. Rep. 638.)
In re CLEMENT, State Excise Com’r.
(Supreme Court, Special Term, Kings County.
April, 1908.)

Headnote

Intoxicating Liquors—Tax Certificate—Consents.
On an application for liquor tax license, to determine the number of consents which the applicant is required to secure, unfinished houses should not be counted in estimating the number of dwellings within the prescribed distance.
Application by Maynard N. Clement, as state commissioner of excise, for an order revoking a liquor tax certificate issued to Joseph
p. 1074
Wax, and transferred to John Ferdinand and Nicholas C. Seedorf.
Application granted.
H. H. Kellogg, for petitioner.
E. B. Barnum, for respondent.

Within the radius of 200 feet from 430 Ridgewood avenue there were, in November, 1907, 17 buildings claimed to be occupied exclusively as dwellings. For 6 of these no valid, consents were given. As to 415 Ridgewood avenue the consent was signed by Florence Mahoney, but his wife, Julia Mahoney, was the owner; while as to 414 Ridgewood avenue the consent was signed and acknowledged by Mr. Stafford, but not his wife, who was joint owner of the property. Quigley v. Monsees, 56 Misc. Rep. 110 , 106 N. Y. Supp. 167 .

If there were 17 dwellings, the defendants had 11 consents, or not quite two-thirds; but to my mind there were not 17 dwellings. In the Case of Ruland, 21 Misc. Rep. 505 , 47 N. Y. Supp. 561 , the dwellings evidently were furnished and ready for occupancy; but here' the houses Nos. 192 to 198 (inclusive) Crescent street were unfinished, workmen still in them, and no certificate permitting occupancy issued under and in accordance with the charter (section 1344, Laws 1901, p. 567, c. 466), Even if the Ruland Case be good law, yet somewhere in process of construction a building emerges into a dwelling. Is it when the roof is on, or when inclosed, or when it is completely finished and ready for immediate occupancy? The latter, I think, must be the determining point, if the Ruland Case is to govern.

The houses were not, according to the testimony, ready in November, 1907, for immediate occupancy, and therefore not exclusively dwellings occupied as such within the statute. Taking those out left 13 dwellings, of which the defendants have consents for 7, instead of two-thirds, which would be 9.

The petitioner’s prayer is granted, and certificate revoked.

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