St. Thomas' Church v. Board of Excise — 49 N.Y. St. Rep. 367

Majority

p. 367

St. Thomas’ Church, Pl’ff, v. The Board of Excise of the City of New York, Def’t.

(Supreme Court, General Term, First Department,

Filed November 10, 1892.)

Headnote

Excise—Measurements—Laws 1893, chap. 401.

Under chap. 401, Laws 1892, the measurement is to be taken from the principal entrance to the church building to the principal entrance to the saloon or room where the liquor is to be sold, and not the principal entrance to the building in which the saloon is situated.

p. 368

Motion for an injunction pending the action.

Peter R. Gatens, for the motion ; Edward Browne, opposed.

In providing that under certain circumstances no person shall be licensed to sell liquor in any building which shall be on the same street as a building occupied exclusively as a church or schoolhouse, and within 200 feet thereof, the legislature has directed that “ the measurements shall be taken between ’the principal entrances of the buildings used for such church or school purposes and the place for which an application for a license has been made.” The court is of opinion that it is the principal entrance to the saloon or room in which liquor is to be sold which is here contemplated, and not the principal entrance to the building in which the saloon is situated. It is not the building which is spoken of, but the “ place” for which an application for a license has been made. The principal entrance to the building might well be many feet removed from the entrance to the saloon. Upon the facts in the present case it appear^ that the principal entrance to the building is not the principal entrance to the place for which a license is sought, and that the distance between the principal entrance to the church and that of the saloon is more than 200 feet.

The motion must, therefore, be denied.

Van Brunt, P. J., and Barrett, J., concur.