In re Ryon — 80 N.Y.S. 1114

Majority

p. 1114

(39 Misc. Rep. 698.)

In re RYON.

(Ulster County Court.

January, 1903.)

Headnote

1. Liquor Tax Certificate — Revocation.

Where, at the time an application was made for a liquor tax certificate for a hotel, some of the bedrooms of the hotel did not comply with the liquor tax law as to floor area and cubic feet of space, it must be revoked.

2. Same — Misstatements in Application.

Where a small house was erected with intent to defeat the granting of a liquor tax certificate, and was occupied as a home by a man and wife, who paid rent therefor, it was “occupied exclusively for a dwelling,” within the liquor tax law, and when within 200 feet of a hotel the statement of an applicant for a license therein that there was no dwelling within 200 feet was material and false.

Petition of Fred L. Ryon for cancellation of liquor tax certificate issued to John P. Auchmoody.

Granted.

George Davis (Chas. F. Cantine, of counsel), for petitioner.

Brinnier & Searing, for John P. Auchmoody.

This is an application for the revocation of liquor tax certificate, issued to John P. Auchmoody, because of alleged false statements in the application for such certificate.

Application was made for a license known as a “hotel license,” and in such case the liquor tax law provides that a building, used as a hotel and located as is the one in question, shall contain at least 6 bedrooms, each of which shall have at least 8o square feet of floor area, and shall have at least 6oo cubic feet of space therein. The bedrooms in the hotel of Auchmoody did not answer the requirements of the liquor tax law,' and contained a less number of cubic feet than the law required. The floor area of some of the bedrooms was only about 54 square feet, and they contained only about 384 cubic feet of space therein. Where the Legislature has required that a hotel shall have rooms containing at least 80 square feet of floor area, the court has no power to say that a room containing 70, 60, or 54 square feet, or less, will answer the requirements of the statute. I think the provision of the statute mandatory. If it had appeared in the application that the rooms in question were not of the sizes required by law, a certificate would undoubtedly have been refused. Where it appears, after a license has been granted, that the law has not been complied with, the certificate should be revoked. It was held in Matter of Barnard, 48 App. Div. 424 , 63 N. Y. Supp. 255 , that the court must decide the matter as of the time when the application was made, and, if a false statement was made in the application, it is then the duty of the court to revoke the license.

Immediately prior to the granting of this license a small house was erected, which, since May 4, 1902, has been used and occupied as a dwelling and home by Ahram. Hornbeck and wife, and they have paid rent for it. Although it appears that the building was erected with the avowed purpose and intent of defeating the granting of the liquor certificate in question, yet, where the dwelling is actually used as a dwelling and home by a man and wife, it comes within the

p. 1115

provisions of the liquor tax law. This building is located within 200 feet of the building used and occupied by Auchmoody as a hotel, and the application for the certificate contained false statements as to . there being no dwelling within 200 feet.

For these reasons the application of the petitioner is granted, with $25 costs.

Application granted, with $25 costs.