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People ex rel. Ruppert v. Clement

124 N.Y.S. 106 Court N.Y. App. Div. Decision date 1910-07-07 English

Delivered by CLARKE, J.

Contents

Majority

p. 106
(139 App. Div. 508.)
PEOPLE ex rel. RUPPERT v. CLEMENT, State Com’r of Excise.
(Supreme Court, Appellate Division, First Department.
July 7, 1910.)

Headnote

Appe'al from Special Term, New York County.
Biandamus by the People, on the relation of Jacob Ruppert, to compel 31ay-nard N. Clement, as State Commissioner of Excise, to award a rebate under tile liquor tax law (Consol. Laws, c. 34). Appeal from an order denying a peremptory writ.
Reversed, and writ granted.
Argued before INGRAHAM, P. J., and LAUGHLIN, CLARKE, SCOTT, and BIILLER, JJ.
Ashbel P. Fitch and Mott & Grant (D. Cady Herrick, of counsel), for appellant.
Herbert H. Kellogg (Frederick W. Stelle, of counsel), for respondent.

This case presents the same point discussed and decided in People ex rel. Haffen Brewing Co. v. Clement (opinion handed down herewith) 123 N. Y. Supp. 102 , with this exception: In the case at bar the petition alleged that James Hogan, an employé of the certificate holder, was arrested on a charge of unlawfully violating the provisions of said liquor tax law (Consol. Laws, c. 34) and that said complaint was dismissed by the grand jury, and a certificate of dismissal under the seal of the Court of General Sessions of the Peace was attached.

Upon the authority of People ex rel. Fallert Brewing Co. v. Lyman, 53 App. Div. 470 , 65 N. Y. Supp. 1062 , affirmed 168 N. Y. 669 , 61 N. B. 1133, and People ex rel. Stevenson Brewing Co. v. Lyman, 69 App. Div. 406 , 74 N. Y. Supp. 1104 , this action by the grand jury is equivalent to an acquittal.

The order appealed from should therefore be reversed, with $10 costs and disbursements, and a peremptory writ of mandamus granted, with $10 costs. All concur.

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