39 Misc. 689 | New York County Courts | 1903
It is alleged in the petition that the liquor tax certificate .was issued to said Frank L. Hillman upon his written application duly verified, stating among other things:
First. That the said premises were actually occupied as a hotel on March 23, 1896.
Second. That for the past nine or ten years the said premises had been continuously occupied as a hotel.
Third. That the said Hillman might lawfully carry on such liquor traffic upon said premises and was not within any of the prohibitions of the law. _
Fourth. That the statements so made by Hillman were material statements and were false. That the said premises are within two hundred feet of the nearest entrance of buildings occupied exclusively as dwellings.
The defendant, answering the said petition, admits the granting of the said certificate and the statements on which the same was granted; that he has trafficked in liquors thereunder as alleged and denies upon information and belief each and every other allegation in said petition contained, and alleges that said certificate was lawfully issued, and that each and every condition necessary for the issuing thereof existed; that he is informed and believes the said premises were on the 23d day of March, 1896, actually occupied as a hotel; and that he was under none of the prohibitions of the Liquor Tax Law (Laws of 1896, chap. 112).
These issues upon an order to show cause were sent to a referee to take and report the evidence to the court. The referee has filed his report and the proceeding is now before me, under the practice prescribed in subdivision 2 of section 28 of the Liquor Tax Law, for an order revoking the said liquor tax certificate.
Were the premises actually occupied as a hotel March 23, 1896, when the Liquor Tax Law became operative, and were they continuously occupied as a hotel thereafter and until the liquor tax certificate was issued to Hillman ? If they were, the applicant is entitled to the certificate, and it is immaterial whether or not the liquors were sold upon the premises. This brings us to the ques
The legal definition of an inn is the same as what is understood in this country by a hotel. An inn or hotel is a house where all who conduct themselves properly and who are able and ready to pay for their entertainment are received, if there is accommodation for them, or who, without any stipulated engagement as to the duration of their stay, or. as to the rate of compensation, are, while there, supplied at a reasonable charge with their meals, their lodgings and such services and attention as are necessarily incident to the use of the house as a temporary home. Cromwell v. Stephens, 3 Abb. Pr. (N. S.) 26. This is the same definition applied to the term “ hotel ” by the Liquor Tax Law, section 31, with the added words, “ and in which the only other dwellers shall be the family and servants of the hotel keeper; and which shall conform to the following requirements if situated in a city, incorporated village of twelve hundred or more * * * inhabitants. 1. The laws, ordinances, rules and regulations relating to hotels and hotel keepers * * * shall be fully complied with.” The petitioner claims that the omission to keep a register and to post notices as to deposit of valuables and the failure to have stable accommodations go to show that the premises were not run as a hotel. To so hold would be a technical and strained construction of the law, as many places which are recognized in the country as hotels .do not have a safe, register or stable; besides the statute requiring the posting of notices was enacted for the protection of the hotel keepers and to limit his liability and not as a requirement necessary towards the establishing of a hotel. It is not necessary that the house be kept only for the reception of travelers. It is not necessary to constitute a hotel that it shall conform to the requirements of subdivision 1 of section 19 of chapter 401 of Laws of 1892, or of section 31, chapter 112 of Laws of 1896. It was a hotel in the contemplation of the Liquor Tax Law if it was kept open for entertaining strangers or travelers. Matter of Moulton v. Acconcia, 59 App. Div. 27. See also Liquor Tax Law (L. 1901, ch. 640, '§ 7). It is sufficient that all who come to the house without any previous agreement as to duration of their stay or terms of their entertainment are received as guests. Taylor v. Monnot, 4 Duer, 116; Wintermute v. Clarke, 5 Sandf. 242.
Was this a hotel March 23, 1896? Although the accommodations for the guests of the house were limited and not such as are ordinarily expected at a hotel, I think the contention of the respondent that the premises were occupied as a hotel on March 23, 1896, has been established. In so far as this point is concerned, the application must be denied.
This brings us to the consideration of the second contention, that the premises have been continuously occupied as a hotel since the 23d day of March, 1896.
The petitioner claims that the building occupied by Commings
The evidence on this point is that the house was enlarged, by putting the barber shop in the basement and an addition on the rear, the barber shop now being the barroom. The basement was a part of the building in March 23, 1896, but was not finished off into a room. Does finishing this basement into a room and using it as a barroom change the building as contemplated by the Liquor Tax Law? If this be true then a person keeping a hotel cannot move his bar from one part of the building to a room in another part. The petitioner cites Matter of Haight, 33 Misc. Rep. 544, as supporting his contention. That was a case where an entirely different and separate building was purchased and connected with the old building by building between, and the application was for the privilege of selling liquor in the “ New Building.” The court held that the “ building purchased was not entitled to the privilege existing in favor of the hotel property. The law unquestionably intended that the certificates should be confined strictly to the premises to which they were applicable., and not to such premises as might, in the future be connected with the original premises, but did it intend that it should not apply to the original premises, that were entitled to the exemption, simply because the basement was made into a barroom. I think not. In Matter of Moulton, 59 App. Div. 29, the court by inference sustains this position. This case was affirmed in 168 N. Y, 645.
The petitioner further contends that if the place in question was a hotel at the time the Liquor Tax Law was passed, it was abandoned as such and the exception in the statute relieving Hill-man from the necessity of procuring the consents of residents does not apply here. It was held in Matter of Kessler, 163 N. Y. 208, that: “ In order to deprive the place of; the privilege conferred by the statute it must appear that there was a real and substantial abandonment of the business by the occupant.
“When that is shown it will terminate the privilege, even though the suspension should be for but a brief period. But where the occupant is compelled to suspend for a brief period by stress of circumstances, or from an accident, * * * the right will not be lost, providing the business is resumed at the first reasonable opportunity.” The plain purpose of the law was, that when the business in such places has been once abandoned, it
Having decided that the place was á hotel March 23, 1896, the only remaining question for us to consider is has it been, within the meaning of the statute, continuously occupied as a hotel since. The petitioner contends that it has not been run as a hotel but as a boarding-house, while the respondent claims the reverse. The evidence shows that a large majority of the people staying at the house were persons who stayed there for a longer time than one day and paid for their accommodations by the week if they stayed one week or longer or at a stipulated price per week. On the other hand the evidence shows that any one who came there and asked for lodging and meals were received and entertained, they paying twenty-five cents per meal, and the same sum for lodging, and each witness, who had kept the house since March 23, 1896, testified that they always kept any person who came there and asked for meals and lodgings, if they had the accommodations. Merely fixing the price to be paid does nofe make the person a boarder rather than a guest. Hancock v. Rand, 94 N. Y. 10, and cases cited. See also Metzger v. Schnabel, 23 Misc. Rep. 699. There are numerous decisions holding that, even where there is a special agreement as to time and price, it does not absolutely disturb the relationship of innkeeper and guest, although it seems to be well settled that a guest, as distinguished from a boarder, is bound for no stipulated time and stops for as long or short time as he pleases, paying, while he -remains the customary charge; still a person may pay by the week at a hotel and not change the character of the house to & boarding-house. So far as the question of entertaining people is concerned, I think the evidence sustains a finding that the place has been run as a hotel within the fair meaning of the law. On
The respondent Hillman claims that, as he acted in good faith, the statement as to the continuous occupancy of the hotel is immaterial and the application must be dismissed. The prohibition contained in section 24, subdivision 2, of the Liquor Tax Law, provides that the prohibition therein shall not apply to a place which, on the 23d day of March, 1896, was lawfully occupied as a hotel. Section 17, subdivision 8, of the same law, provides for filing the certificates in a case where the premises are within the prescribed limits except that such consent shall not be required for any place described in said statement which was occupied as a hotel March 23, 1896, notwithstanding the traffic in liquors was not carried on thereat. The Court of Appeals in considering a similar case (165 N. Y. 191), said “ The statement in the application upon which the order was based, even if untrue, was wholly immaterial, and an order revoking a license for a false statement cannot be predicated upon such a representation. There was power under the law to issue the certificate, whether the business had been continuously carried on at the place in question or not after the enactment of the present law. The statute does not require the use of the premises for the purpose of the traffic to be continuous. The word ‘ continuous ’ does not apply to that provision of the statute, or to the exception therein in favor of places .like- this.”
I do not see why the same principle will not apply to a place occupied as a hotel March 23, 1896, although no liquor was sold: Again at page 192 the court says: “Nor is it necessary to produce the consents required by subdivision 8 of section 17. All that is necessary to state in order to relieve the applicant from the necessity of filing consents is that the traffic was actually and
There is nothing in this case to show the statements made by Hillman were wilfully false. The evidence shows that in Hill-man’s application for a liquor tax certificate, his grantor made a statement under oath, “ that prior to March -23, 1896, he was and had been for about four years the owner and proprietor of the hotel on Commings’ Corner in Main street, known as Commings’ Hotel or the Commings’ House, and that said building had been continuously occupied as a hotel since that time.” Hillman swore he never was inside of the house until he bargained for it, some few months before he made his application for the certificate. If I correctly construe the meaning of the court in 163 and 165 New York, supra, the principle applied in 163 New York is the same as the case under consideration excepting that the court held in that case that the premises had been continuously occupied as a hotel, while in this case I hold they had not been. We find ourselves confronted with the decision of the Appellate Division, holding that the question of good faith is immaterial, and the Court of Appeals, deciding that it must be shown +ha+ the facts were wilfully misstated. If it must be shown that the
Application denied with costs.