Hyperlawhypertext legal database People ex rel. McGrath v. Board of Excise Com'rs 18 N.Y.S. 884

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People ex rel. McGrath v. Board of Excise Com'rs

18 N.Y.S. 884 Court N.Y. Gen. Term Decision date 1892-05-09 English

Delivered by Barnard, P. J.

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p. 884
People ex rel. McGrath v. Board of Excise Com’rs of City of Yonkers.
(Supreme Court, General Term, Second Department.
May 9, 1892.)

Headnote

Intoxicating Liquobs—Revocation of License—Res Ad judicata.
A judgment of the court of sessions, sustaining a demurrer to an indictment for not keeping an inn closed on Sunday, is no bar to a proceeding before the board of excise commissioners to revoke defendant’s license for failing to close his barroom on Sunday.
Certiorari, on the relation of Richard McGrath, to review a decision of the board of excise commissioners of the city of Yonkers revoking relator’s tavern license for failing to keep his barroom closed on Sunday. Relator had been previously indicted “for not closing and keeping closed his licensed inn, tavern, or hotel.” He demurred to the indictment, and the demurrer was
p. 885
sustained. Relator moved to dismiss the proceedings before the board, offering in evidence the order of the court of sessions sustaining the demurrer to the indictment. The motion was denied, and relator notified that the board would hear any proof that he might offer, but he declined either to testify or call any witnesses.
Decision of the board affirmed.
Argued before Barnard, P. J., and Dykman and Pratt, JJ.
John F. Brennan, for relator. Arthur J. Burns, for defendant.

The evidence returned shows that the relator was a licensed innkeeper; that he kept open his barroom on Sundays. The proof warrants a conclusion that the persons who frequented and drank beer upon the premises were not travelers, but were such as frequented Saloons. The decision of the Westchester court of sessions had no relevancy. The indictment was for not keeping his inn closed on Sunday. The relator had an opportunity to present his defense on the 6th of November, 1891, after the session had sustained the demurrer to the indictment. The motion to dismiss the complaint was properly denied. The proceedings before the county court of sessions did not bar this complaint, and the evidence established that the frequenters of the barroom on Sundays were not guests of an hotel. The judgment of the comtnissioners should therefore be affirmed, with costs.

All concur.