Majority
p. 167The People ex rel. Richard McGrath v. The Board of Excise of The City of Yonkers. (Supreme Court, General Term, Second Department, Filed May 9, 1892.)
Headnote
1. Excise—Revocation op license.Proceedings were commenced before the board to revoke relator’s license, on the ground of keeping open bis bar on Sunday. An officer testified that his attention was attracted by the crowd going in the place by the hall door; that he went in and found the bar-keeper behind the bar, ready for business, and that relator tried to put him out. Relator having been indicted upon the same testimony for not keeping bis hotel closed on Sunday, which indictment was quashed on demurrer, the proceeding was opened, and a motion made to dismiss the proceeding on the ground that the indictment had been set aside, which motion was denied, and his license revoked. Held, that the proceedings were regular, and that the proof warranted the decision.
2. Same—Bar.
The judgment of the court of sessions sustaining the demurrer to the indictment for not closing the hotel was not a bar to this proceeding.
Certiorari to review the action of the board in revoking the relator’s hotel license.
Complaint being made to the excise board that relator had violated his license by keeping his bar-room open on Sunday, a summons was issued, and on the return day thereof the relator appeared personally and by counsel. On the adjourned day he did not appear, and testimony was taken of the officer who made the complaint. The officer testified that he noticed crowds of people going in relator’s hall door, which was open; that he went in to see where they were going, and passed through an inside door into the bar-room: that relator was there, and his bar-tender behind the bar, ready for business; that there were a dozen persons sitting there at tables on which there were glasses of beer; that relator tried to put him out, upon which he arrested him and took him to the station house, where he gave bonds, and that he was after-wards indicted. Subsequent to this, relator’s demurrer to the indictment, which was for not closing his hotel on Sunday, was sustained by the court of sessions, and the indictment dismissed. This proceeding was then re-opened, and relator moved for its dismissal on the ground that the indictment had been dismissed. This motion was denied, and the board revoked the license.
John F. Brennan, for relator; Arthur J. Burns, for resp’t.
The evidence returned shows that the relator was a licensed innkeeper; that he kept open his bar-room on Sundays. The proof warrants a conclusion that the persons who frequented and drank beer upon the premises were not travelers,
p. 168
but were such as frequented saloons. The decision of the Westchester court of sessions had no relevancy. The indictment was for not keeping his inn closed on Sunday. The relator had an opportunity to present his defense on the 6th of November, 1891, after the sessions had sustained the demurrer to the indictment. The motion to dismiss the complaint was properly denied. The proceedings before the county court of sessions did not bar this complaint and the evidence established that the frequenters of the bar-room on Sundays were not guests of a hotel.
The judgment of the commissioners should therefore be affirmed, with costs.
Dykman and Pratt, JJ., concur.