People ex rel. Hoy v. Bulls — 36 N.Y.S. 371

Majority

p. 371

(91 Hun, 144.)

PEOPLE ex rel. HOY v. BULLS et al., Excise Commissioners.

(Supreme Court, General Term, Third Department.

December 28, 1895.)

Headnote

Intoxicating Liquors—Licenses—Powers of Excise Commissioners.

The commissioners of excise have the power to limit the number of hotel licenses granted in a given territory, as well as to refuse a license on a showing of the unfit character of the applicant.

Appeal from Albany county court.

Certiorari by John Hoy to review the determination of Charles H. Mills and others, commissioners of excise of the city of Albany, in refusing to grant an hotel license to relator. From an order directing the granting of a license, defendants appeal.

Beversed.

p. 372

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.

Richard O. Bassett, for appellants.

George H. Stevens, for respondent.

The relator in this case made an application for a saloon license. After the hearing of such application, upon which much testimony was taken, the defendants adopted the following resolution:

“Resolved, that the application of John Hoy for an hotel license at the-premises 334 Broadway.is hereby rejected, and a license refused, for the reason that considering the rights and interests of the property owners and. residents of the neighborhood, and the number of existing licensed place» in the vicinity of the place for which a license is sought, the commissioner» of excise are satisfied that there is no immediate necessity or convenience to be served in granting such an application at this time, and on the-further ground that said Hoy is not a man of good moral character, approved by the board; that this board is convinced that the premises for which a license is asked has been kept by said Hoy for a long period of time as a place for persons to visit for unlawful sexual intercourse, and as such is a nuisance to the neighborhood and the city.”

We think that the board of excise has the right to limit, the number of places that they will grant a license to in a specified territory, and that a refusal to grant a license, upon the ground that there are a sufficient number of places already licensed within such specified territory, should be sustained, unless the court is satisfied that such ground is a subterfuge, and does not constitute the real reason for their action. The other grounds for the refusal to grant the license,—the immoral character, of the applicant-, and the uses to which he permitted his place to be put during- his occupancy of it,—we think, were sustained by the evidence taken by and before said commissioners, and afford good and valid- reasons for the refusal of the defendants to grant the license asked for.

For these reasons the order of the county court should be reversed, and the decision of the commissioners affirmed, with $50> costs and disbursements.