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In re Clement

112 N.Y.S. 126 Court N.Y. App. Div. Decision date 1908-07-07 English

Delivered by WILLIAMS, J.

Contents

Majority

p. 126
In re CLEMENT, State Excise Com’r.
(127 App. Div. 942.)
(Supreme Court, Appellate Division, Fourth Department.
July 7, 1908.)

Headnote

Intoxicating Liquors—Proceedings fob Revocation of License—Evidence— Sufficiency.
Evidence, on a petition by the state commissioner of excise for an order canceling a liquor tax certificate on the ground that the holder had sold liquor on Sunday contrary to law, held to show that liquor had been so sold, notwithstanding evidence that the service thereof was in connection with meals ordered and served.
Appeal from Special Term, Chautauqua County.
In the matter of the petition of Maynard N. Clement, as State Commissioner of Excise, for an order revoking and canceling liquor tax certificate No. 26,223, issued to John W. Renfold. Erom an order dismissing the petition, the Commissioner appeals.
Order reversed, and order directed revoking and canceling the certificate.
Argued before McLENNAN, P. J„ and SPRING, WILLIAMS, KRUSE, and ROBSON, JJ.
Russell Headley and Royal R. Scott, for appellant.
Eleazer Green, for respondent.

The order should be reversed, with costs, and an order made revoking and canceling the liquor tax certificate, with $30 costs.

The reason alleged for taking away respondent’s certificate was that he sold liquor on Sunday, contrary to law. The sales were testified to by four witnesses, special excise agents of the state. There seemed to be no doubt as to the sales of liquor; but it was claimed the service of the liquor was in connection with genuine meals ordered by and served to the witnesses. The evidence given in behalf of defendant to sustain this claim was very unsatisfactory, and in our judgment entirely failed to overcome the evidence given by the petitioner’s four witnesses. These men knew what the truth was. They went to defendant’s place for the express purpose of ascertaining whether he was violating the law. They could not be mistaken as to the evidence they gave, and if it was untrue they were guilty of deliberate perjury. They were performing a duty as state agents, were under no obligation to testify to anything that was untrue, and we cannot believe the evidence they gave in this proceeding was untrue.

We do not regard it as necessary to enter upon an analysis of the evidence given for defendant; but a careful reading of it fails to throw any doubt upon the evidence given for petitioners. This being so, we cannot permit this order to stand. The excise law must be enforced, and the courts should not permit any flimsy pretexts to prevent the revocation of licenses that have been violated. We think this

p. 127
a case where even the apparently well-considered determination of the Special Term should be reversed, and an order substituted which is in accord with the truth.

Order reversed, with costs, and order directed revoking and canceling the liquor tax certificate, with $30 costs. All concur.