85 N.Y.S. 324 | N.Y. App. Term. | 1903
The defendant Has been charged with a liability for the price of a barrel of whisky and a case of bitters delivered to one Ryan at a saloon conducted by the latter under his own name, and the sole ground for the recovery is sought to be afforded by the presence of the defendant’s name upon the liquor tax certificate applicable to the premises. The certificate was evidence of nothing other than the payment of the excise tax, and the fact that the defendant had made an application for it, based upon his statement that he" intended to conduct a liquor business, together with such other statement as the statute called for. See Niles v. Mathusa, 162 N. Y. 546, 57 N. E. 184. Penalties for a violation of the excise law were to be visited upon the record holder of the certificate, because the statute which authorized the conduct of the business so prescribes. Lyman v. Kurtz, 166 N. Y. 274, 59 N. E. 903. But nothing in the statute, nor in the character of the certificate, intends that the record holder is, as to creditors, the principal in the conduct of the' business, by operation of law. Possibly some estoppel might be invoked by a creditor who gave credit to the record holder in reliance upon the representation to be spelled from the presence of the certificate upon the premises; but nothing of the kind was involved here, since the creditor had not seen the certificate, and gave credit to Ryan. At best, the evidence afforded proof that the defendant, some months before the sale and delivery, was about to do business at this place, because he had so stated in his application. This was, however, no proof that he had any connection with the sale in suit; and, as an undisputed fact, he was an employé of a brewing company which was the real owner of the certificate. Neither in law nor in fact was he the principal, disclosed or undisclosed, in the sale to Ryan, and the recovery below was quite unauthorized.
Judgment reversed, and new trial ordered, with costs to appellant to abide the event All concur.
