People ex rel. Kimball v. Haughton — 4 N.Y. St. Rep. 78

Majority

p. 78

People ex rel. Charles H. Kimball v. Nicholas Haughton et al., Commissioners of Excise of the City of New York.

(Supreme Court, General Term, First Department,

Filed October 15, 1886.)

Headnote

1. Excise law—Commissioners—Annulling license—Practice—When irregularity in service of summons waived.

In proceedings "before the commissioners of excise to annul a license objection on account of the irregular mode of serving the summons is waived by appearing and obtaining an adjournment of the hearing.

2. Same—When two commissioners can act.

The objection that the order and decision were made by two of the three commissioners is without force where it appears that the third had notice of the time and place to which the hearing was adjourned. That being the fact, the action and determination of a majority will be effectual for all purposes.

3. Same—Proof necessary—Laws 1873, chap. 649.

The statute does not require the same strictness by way of proof in proceedings taken to annul a license for the sale of intoxicating liquors as is. required in an action or special proceeding in court. It has not prescribed the legal mode through which the commissioners may become satisfied, that the’person proceeded against has failed to observe the statutory provisions upon which the continuance of his license depends.

Certiorari to review the order and decision of the commissioners of excise vacating and annulling a license-issued to the relator.

John 0,Byrne, for "relator; Elliot Sandford, for resp’ts.

The objection taken to the proceeding that, the summons was not served upon the relator himself, but upon the person who, in his absence, was found in the-possession and control of his establishment, is deprived of' its force by the fact that an attorney and counsellor appeared for him at the time and place designated for the-return, and, without objection to the mode of service, "moved for and obtained an adjournment of the hearing. If it had been intended to resist the proceeding on account of this irregular mode of service, the objection should have-been taken before the commissioners, when it might have-been obviated by issuing another summons and securing the -service of it personally upon the relator.

The objection that the order and decision were made by two of the three commissioners is also without "force, for it appeared that the third had notice of the time and place-

p. 79

to which the hearing was adjourned by having participated in the making of the order for the adjournment. And when that is the fact, under the statute defining the powers and course of proceedings of such officers, the action and determination of a majority will be effectual for all the purposes of the case.

The statute does not require the same strictness by way of proof in a proceeding taken to annul a license for the sale of intoxicating liquors as is required in an action or ■ special proceeding in court. By section 4 of chapter 549 of the Laws of 1873, the board of excise of any city, town or village may at any time, and upon the complaint of any resident of said city, town or village, shall summon before them any person or persons licensed, and if they shall become satisfied that any such person or persons has or have violated any of the provisions of this act, or of the acts amended by it, they shall revoke, cancel and annul • the license of such person or persons, which they are thereby empowered to do. It has not prescribed the legal mode through which the commissioners may become satisfied that the person proceeded against has failed to observe the statutory provision upon which the continuance of his Ecense may depend. But it has provided in very general language that.when the commissioners shaU become satisfied of the necessary fact, after summoning before them the person proceeded against, they shaU revoke, cancel and annul his Ecense. The proceeding is evidently designed to be summary, and to depend upon such reEable imformation as the commissioners may be able to obtain to a reasonable certainty establishing the existence of the necessary fact. In the present case they received information from the district attorney of the county that the relator’s estabEshment was of a disreputable character and made the resort of evil disposed persons. And this was further proven by the evidence which had been taken upon the trial of JamesMcQuade in the court of sessions concerning a criminal offense aUeged to have been committed at the saloon of the relator. No objection was taken by his counsel, who was present at the hearing, to this evidence, but an appEcation was made for the further adjournment of the proceeding on the ground that the relator himself was unable to attend by reason of the fact that he was confined in prison'. The evidence submitted to the commissioners was such as to prove that the relator’s place was an improper one t'a be Ecensed under the provisions of the statute, and they were accordingly authorized upon the proof to annul, cancel and vacate his Ecense as they did.. The evidence was sufficient for that purpose, as long as no proof whatever was given, on behalf of the relator tending to reduce its effect, or in

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any manner excuse him from the truth of the charge it tended to prove.

It is not necessary to determine the objection whether or not a writ of certiorari can be issued to review the proceedings and decision of the commissioners of excise under this act, for in this case neither of the objections which have been taken in support of the writ is well founded. The decision of the commissioners should therefore be affirmed, with costs, and the writ dismissed.

Macomber and Brady, JJ., concur.