In re McCusker

appealed from, to traffic in'liquors, and in which he carried on such traffic, is situate on the west side of Third street, in the city of Troy, and is separated by less than three feet from the Berith Sholom Temple, a Jewish synagogue, situate on the same street, and the distance from the center of the nearest entrance of the one to the center of the nearest entrance to the other is less than 200 feet. At the date of the passage of the liquor tax law, March 23,1896, the building in which the appellant traffics in liquors was not lawfully occupied for a hotel, nor was it a place in which such traffic in liquors was lawfully carried on at that date, and in the latter particular the appellant’s application for the certificate was not true. The certificate was granted to him in violation of subdivision 2 of section 24 of the liquor tax law (chapter 112, Laws 1896) if the synagogue was “a building exclusively occupied as a church.” The special term found that it was so used, and we are asked to review this finding of fact. The church building has been occupied as a church for 30 years. It consists of two floors or stories; the upper story being used exclusively for the religious services of the church, and the lower story for the Sunday school of the church, and also as the meeting place of three lodges, namely, the ’ Free Sons of Israel, the Kesher Shel Barshel and the Independent Order of Benai Berith. These are benevolent societies of a fraternal character, having some features of insurance or pecuniary aid in case of need, with educational and moral helps or incidents. The membership is exclusively limited to those who are Jews by birth, but not necessarily members , of this church or congregation. They usually hold weekly meetings, each at a separate time from the other, and each pays the church some rent, which is devoted to its support. When the church was built, this lower story was fitted for the accommodation of such societies, and with the view of deriving some revenue from them. While not dependent upon the church, or subject to it, they are helpful to it, and their existence, methods, and usefulness are in harmony with its faith and teachings, and they enjoy its favor. The tie which binds these collateral societies to the church itself seems to be partly a community of religious faith, and partly of mutual helpfulness in temporalities. The rule.of construction adopted by the courts in such cases favors the churches, and not the traffickers in liquor. In re Place, 27 App. Div. 561 , 50 N. Y. Supp. 640 , and cases cited at page 568, 27 App. Div., and page 645, 50 N. Y. Supp. We think it would be a harsh and unwarranted construction which would deprive , this church of the protection of the statute simply because the scheme of its usefulness is broad enough to embrace such societies, composed of persons born within its faith, although all of them do not actually worship within its temple. It is no doubt open to them when they wish to do so.

A proceeding similar to this, was instituted by one Holden to revoke and cancel the liquor tax certificate issued to the appellant in 1898 upon the ground that the building in which he trafficked in liquors was within 200 feet of the church. The application was denied. In re McCusker, 23 Misc. Rep. 446 , 51 N. Y. Supp. 281 . The order in that case is no bar to this. The certificate is not the same. The ap

plicant is not the same. The facts stipulated in that case took the appellant’s place of business out of the prohibition of the statute. Such a stipulation is not here made. Any citizen of the state may make the application. Liquor Tax Law, § 28. If a proceeding by one petitioner upon a stipulated state of facts could bar every other petitioner from proceeding upon a proved state of facts, the temptation to an early and collusive proceeding would be great. We do not think the earlier proceeding was collusive, but the rule invoked, if sanctioned, would invite collusion.

The order is affirmed, with costs. All concur, except PARKER, P. J., who dissents.