In re Moulton

matters outside of the petition. We will assume that, a license having been granted for the sale of liquors on these premises under the provisions of.the law as it existed prior to the enactment of the liquor tax law in 1896, the trafficking in liquors which was concededly carried on in the premises on the 23d day of March, 1896, was lawful; and the evidence clearly establishes that the premises were actually occupied as a hotel at the time. It is not necessary, to constitute a hotel, that it should conform to the requirements of subdivision 1 of section 19 of chapter 401 of the Laws of 1892. It was a hotel, in the contemplation of the liquor tax law, if it was kept open for entertaining strangers or travelers (15 Am. & Eng. Enc. Law [2d Ed.] 766, and authorities there cited); and the question of whether the license granted in 1895, and in force at the time of the enactment of the liquor tax law, was a lawful license, is not material to the question now before us. The real question is whether the statements made in the application of Pasquale Acconcia, and which are concededly untrue, are material; whether he would have been entitled to the liquor tax certificate if his answers had correctly stated the facts. If he would, then the statements are not material, and they cannot invalidate his certificate. In re Kessler, 163 N. Y. 205 , 207, 57 N. E. 402 . By the provisions of subdivision 8 of section 17 of the liquor tax law, “when the nearest entrance to the premises described in said statement as those in which traffic in liquor is to be carried on is within two hundred feet, measured in a straight line, of the nearest entrance to a building or buildings occupied exclusively for a dwelling,” it is necessary to file the consents in writing of at least two-thirds of the owners of such building or buildings ; but it is provided that “such consent shall not be required in cases where such traffic in liquor was actually lawfully carried on in said premises so described in said statement on the twenty-third day of March, eighteen hundred and ninety-six, nor shall such consent be required for any place described in said statement which was occupied as a hotel on said last-mentioned date, notwithstanding such traffic in liquors was not then carried on thereat.” If it be conceded that the license granted in 1895 by the local board of excise was legal (and the presumption must always be that public officials have done their duty), there is no question that the premises described in the application for the certificate were actually occupied as a hotel at the time of the liquor tax law going into effect, and it was not necessary to have the consents required by the provision of the statute above quoted. It is obvious, therefore, that, if the .applicant had stated that there were buildings used as residences, or as churches and school houses within the prohibited distance, it would not have affected his right to the liquor tax certificate, and the statement, whether true or false, was utterly immaterial. In re Hawkins, 165 N. Y. 188 , 192, 58 N. E. 884 . It is proper to state, however, that the case last mentioned was decided by the court of ■appeals subsequent to the time when the learned court at special term made the order now under review.

But it is insisted that the trafficking in liquors was suspended upon these premises from the 23d day of October, 1899, to about

the 15th day of May, 1900, and that the statement of the applicant that “trafficking in liquors was actually and lawfully carried on in said premises on April 30, 1892, and continuously since,” being untrue, was a material misstatement of the facts, warranting the order granted by the court below. It appears from the evidence that the premises described had been used as a hotel for a series of years; that the building was constructed 10 or 12 years before the hearing, and had been used as such up to about the 23d day of October, 1899, when the tenant, Joseph McNamara, was dispossessed for the nonpayment of rent. The property belonged to the Traphagen estate at that time, and was subsequently sold to one Peter Cunneen. In the meantime one William Traphagen took out a liquor tax certificate, on the 12th of March, 1900, and, without opening the place,' assigned the same to Pasquale Acconcia on the 26th of April, 1900. The latter, after making repairs, opened the place on the 15th day of May, 1900, under the certificate which was subsequently revoked by the order appealed from. There seems to be no doubt that the statement0 of Acconcia that the premises had been used for trafficking in liquors since April, 1892, was made in good faith; that he believed that this was a substantially true statement of the facts,— he having come into possession while the tax certificate issued to William Traphagen was in force, and resuming the business as soon as necessary repairs were made. But, whether the statement was true or false, it does not affect the right of the applicant to the certificate here involved. The premises were actually occupied as a hotel on the 23d day of March, 1896, and the place in question was expressly excepted from the provisions of the law which required consents to be filed. If there had been no liquors sold upon the premises at any time, either before or after the enactment of the liquor tax law, the applicant would have been entitled to the certificate without filing consents, and the question of whether liquors had been continuously sold upon the premises was not of the slightest consequence. The court of appeals, in Be Hawkins, supra, goes so far as to hold that where the premises were actually occupied for the purpose of lawfully trafficking in liquors on the 23d day of March, 1896, “it is not necessary that it should have been continuous down to the time of the filing of the application for a certificate,” and points out that “the word 'continuously,’ which is used in the same subdivision, refers to a case where consents are necessary for other places, and, having been once obtained and filed, are preserved and kept in force so long as the place shall be continuously occupied for the traffic.” The court further declares, in the same case that “we do not intend to hold that the privilege conferred by the statute, which secures to the property owner a right to the certificate without consents, as to places of this character, may not be lost or abandoned by the intentional act of the owner of the property,” but it indicates that the intention must be clearly established that the “owner intended to discontinue the liquor traffic at the place.” There is no doubt that if the owner of the premises here involved had abandoned it as a hotel, and had put in a stock of groceries or a gristmill, it would so far have lost its character as a hotel as to

come within the general rule laid down by the statute; but the mere fact that the premises were without.a tenant during a period of several months evidences no intention on the part of the owners to abandon the property right secured by the statute, and a mistake on the part of the applicant on a question which did not affect his right to the certificate is of no consequence.

It is not alleged in the petition that any false statement was made in reference to a church or school house, and, if there had been, it is governed by the same rules as to dwellings; the exceptions being the same in effect.

The order appealed from should be reversed, and the proceeding dismissed, with costs. All concur.