In re Ireland — 84 N.Y.S. 1100

Majority

p. 1100

(41 Misc. Rep. 425.)

In re IRELAND et al.

(Tompkins County Court.

September, 1903.)

Headnote

1. Liquor Tax Certificate—Application—Hotel.

Where different application for liquor tax certificate to which the owner of a building had consented in writing, stated that the applicant intended to traffic in liquors in connection -with a restauran^ and another application stated that he-intended'to traffic in liquors in con

p. 1101

nection with a lunch business, and there was also proof that the place was never open on Sunday, the building was not exempt from the necessity of consent to liquor traffic as having been occupied as a hotel continuously.

2. Same—Consents.

In determining whether sufficient consents have been obtained for an application for a liquor tax certificate, consents of owners of buildings used mainly for business purposes cannot be counted.

In the matter of the petition of Eliza Ireland and another to revoke a liquor tax certificate issued to Bridget Messar. Application granted.

Tompkins, Cobb & Cobb, for petitioner.

G. S. Tarbell and D. M. Dean, for defendant.

On the 19th day of June, 1902, the defendant, being ne owner of premises known as the “Messar House,” No. 508 West State street, in the city of Ithaca, N. Y., made application for a tax certificate under subdivision 1 of section 11 of the liquor law, and in her application alleged that the Messar House was used as a hotel on the 23d day of March, 1896, and had been continuously used as such since 1890. These statements, if true, would sustain the certificate I am asked to revoke. The petitioner produces the application for a license for this place made by defendant’s tenant in April, 1896, in which he states that in connection with the business of trafficking in liquors he intends to conduct a “restaurant only.” This application the defendant signed her consent to as owner. Again, in 1897, defendant’s tenant applied for a license, and stated again in his application that he intended to traffic in liquors in connection with “a restaurant,” and the defendant signed her consent to this application. In a later application the same tenant, in answer to the question what other business was to be carried on on the premises beside the sale of liquor, stated “Lunch Business.” To this application the defendant signed her consent; and in all of the years I have mentioned this tenant closed the place on Sundays and did not keep it open as a hotel. Thus it seems to be conclusively shown that the defendant intended to abandon the keeping of a hotel at this place, even if one was being kept there on March 23, 1896, as to which there is much evidence and contention, but in view of what I have stated the question is immaterial. Hence, in order to retain the certificate, it must be shown that the owners of two-thirds of the buildings used exclusively for dwellings within 200 feet of the nearest entrance of the Messar House had signed a consent that the traffic of liquors be carried on on the premises in question. The defendant accompanied his application with the duly acknowledged consents of Mary Sandborn for Nos. 113 and 115 North Corn street. One of these numbers (115) is outside the 200-foot limit. George Stephens for 506 West State, 10 North Corn and 505 West Seneca. No. 506 is used mainly for a grocery store, and cannot be counted. John Wolahan for 519 West State street. W. W. Boyer for 502, 504, 508½ West State, 104 and 106 North Com street. All these buildings are used principally for business. The two first are over a barber shop, the third and fourth

p. 1102

over a shoe shop, and the last one (106), occupied by Leonard, is the only one that can be counted, and that'I do, although it is in the same building with the shoe shop, as there is some evidence that it is entirely separated by appropriate walls. George Stephens, as agent for 505 West Seneca. Louis Coryell for 517 West State. But before the application for the certificate was made Louis Coryell had died. His death revoked his consent, and as to whether or not he was the owner of the property, or who owned it at the time the-application was made, there is no proof other than that of occupants. The consent of the widow and one of the children, a minor of said Louis Coryell, I cannot count, for the reason at least one of the owners of the property did not sign, if it be conceded that Louis Coryell owned the property and died intestate. The number of valid consents which the defendant obtained was therefore five. There were 11 buildings used exclusively for dwellings within the 200-foot limit, and, since two-thirds of this number were not obtained, defendant was not entitled to the certificate in question, and it must be revoked.

Ordered accordingly.