People ex rel. Hoy v. Mills — 71 N.Y. St. Rep. 141

Majority

p. 141

People ex rel. John Hoy, Resp’t, v. Charles H. Mills et al., as Commissioners of Excise, App’lts.

(Supreme Court, General Term, Third Department,

Filed December 28, 1895.)

Headnote

1. Excise—Licenses—Power oe excise commissioners.

The board of excise has a right to limit the number of places to which it will grant licenses.

2. Same.

A refusal to grant a license upon the ground that there are a sufficient number of places or licenses within a specified territory, will be sustained, unless the court is .satisfied that such ground is a subterfuge and does not constitute the real reason for the action of the board.

3. Same.

The immoral character of the applicant, and the uses to which he permits his place to be put during his occupancy of it, afford good and valid reasons for the refusal of the commissioners to grant him a license.

Appeal from an order directing the granting of a license.

Richard O. Bassett, for app’lts;

George H. Stevens, for resp’t.

The relator in this case made an application for a saloon license. After the hearing of such application, upon which much testimony was taken, the defendants adopted the following resolution :

“ Resolved, That the application of John Hoy for an hotel license at the premises 334 Broadway is hereby rejected, and a license refused, for the reason that considering the rights and interests of the property owners and residents of the neighborhood, and the number of existing licensed places in the vicinity of the place for which a license is sraght, the commissioners of excise are satisfied that there is no immediate necessity or convenience to be served in granting such an application at this time, and on the further ground that said Hoy is not a man of good moral character, approved by the board ; that this board is convinced that the premises for which a license is asked has been kept by said Hoy for a long period of time as a place for persons to visit for unlawful sexual intercourse, and as such is a nuisance to the neighborhood and the city.”

We think that the board of excise has the right to limit the number of places that they will grant a license to in a specified territory, and that a refusal to grant a license upon the ground that there are a sufficient number of places already licensed within such specified territory, should be sustained, unless the court is satisfied that such ground is a subterfuge, and does not constitute the real reason for their action. The other ground for the re

p. 142

fusal to grant the license,—the immoral character of the applicant, and the uses to which he permitted his place to be put during his occupancy of it,—we think, were sustained by the evidence taken by and before said commissioners, and afford good and valid reasons for the refusal of the defendants to grant the license asked for.

For these reasons the order of the county court should be reversed, and the decision of the commissioners affirmed, with $50 costs and disbursements.