In re Lyman

This is a proceeding to revoke and cancel a liquor tax certificate pursuant to section 28, subd. 2, Liquor Tax Law, «on the ground of violations of different subdivisions of section 31 thereof, to wit, Sunday sales, and sales during prohibited hours, etc. 'The attorney for the respondent moves that this proceeding be stayed pending the outcome of an action which had been brought upon the bond given by the respondent Scharmann and the Fidelity & Casualty «Company of New York, on the ground that inasmuch as the violations of the liquor tax law, set forth'in the complaint upon the bond, are substantially the same violations as those for which the revocation of the certificate is sought, the respondent should be given the benefit of a jury trial. It was held by the appellate division of this department in Lyman v. Social Club, 39 App. Div. 459 , 57 N. Y. Supp. 372 , that “the liability of a surety upon a bond given in pursu-ance of section 18 of the liquor tax law (chapter 112, Laws 1896, as amended by chapter 312, Laws 1897), is not limited to the civil or ■criminal penalties prescribed in that act for the violation of its provisions,” and that “upon proof that the premises were disorderly, .and that liquor was sold thereon on Sunday, and between 1 and 5 a. an. on other days, in violation of the conditions of the instrument, the ■surety becomes obligated to pay as liquidated damages the penal sum mentioned in the bond, independently of the fact that a judgment for a like amount may have been recovered against the principal in an .action for the civil penalties”; that “an action upon such bond is not criminal, either in form or substance, but is a civil action upon a •contract.” In the case of In re Lyman, 46 App. Div. 387 , 61 N. Y. Supp. 884 , many of the cases relating to this subject were reviewed by Hardin, P. J. , The learned justice says (at page 394, 46 App. Div., and page 888, 61 N. Y. Supp.) that “power to revoke certificates granted under the liquor tax law is conferred upon special terms of the supreme court, or a justice of that court, and it is made the duty ■of such justice or of the court to act and to revoke and cancel cer

Ordered accordingly.