101 N.Y.S. 683 | N.Y. App. Div. | 1906
The State Commissioner of Excise presented a petition to a justice of the Supreme Coúrt praying for an order revoking and canceling a liquor tax certificate theretofore issued to Israel Cohen. The application was made under subdivision 2 of section 28 of the Liquor Tax Law, which provides,'in substance, that at any time after a liquor tax certificate lias been issued under the provisions of the Liquor Tax Law such certificate may he revoked and canceled if material statements made in the previous application of the holder for the certifi
The petitioner in this proceeding set forth in his petition facts relating to the issuance of the certificate to the relator and the furnishing by him of a statement at the time he made his application for the certificate and the granting of such certificate on the faith of such statement. He further set forth on information and belief that in that statement the applicant represented that there were no buildings occupied exclusively as dwellings, the nearest entrance to which was within 200 feet, measured in a straight line, of the nearest entrance to the premises where the traffic in liquors was intended to he carried on. He further alleged on information and belief that the statement was a material statement and was and is false in that there were and are four buildings occupied exclusively as dwell- • ings, the nearest entrance to each of which was within 200 feet, measured in a straight line, of the nearest entrance to the premises where the traffic in liquors was to be and is carried on under the said certificate. He also, on information and belief, alleged that Cohen did not have attached to his application statement a consent in writing that such traffic in liquors be so carried on in said premises during the term therein stated, executed by the owner or owners, or by the duly authorized agent or agents of such owner or owners of at least two-third's of the total number of buildings occupied exclusively for dwellings, the nearest entrance of each of which
On the 19th day of July, 1906, this petition was presented to a justice of the Supreme-Court in the borough of Manhattan, in the county of New York, and an order was obtained returnable on the 27th day of July, 1906, requiring Cohen, the holder of the certificate, to show cause why the liquor tax certificate should not be revoked and canceled upon the grounds set forth in the petition and a temporary restraint was imposed by that order upon Cohen surrendering and transferring the certificate except as expressly authorized by statute until the final determination of the proceedings. On the return day of the order to show cause Cohen, the holder of the certificate, appeared by counsel, who moved to dismiss the proceeding on the ground of the insufficiency of the moving papers and the petitioner moved to have the proofs taken by the court in accordance with subdivision 2 of section 28 of the Liquor Tax Law, and both motions having come on to be heard, on the 1st of August, 1906, the court ordered that the application of the petitioner be (and the same was) denied in all respects and the application of the respondent to dismiss the proceeding was granted, with-costs. From that order the Commissioner of Excise now appeals.
It is apparent that the learned justice at Special Term‘acted upon the application of the State Commissioner of Excise as if the matter had been brought up for final determination upon a motion made on the return day of the order to show cause by the attorney for the holder of the certificate to dismiss the proceeding. In the opinion of the learned justice he says that “hearsay evidence and conclusion that certain premises deposed, upon measurement to be less than two'hundred feet from their nearest entrances to the nearest entrance of the premises where traffic in liquors is conducted have been occupied exclusively as dwellings, for so deponent was informed by occupants thereof and from his own observation verily believes to have been so occupied, are insufficient upon which to grant cancellation of the certificate herein.” The application was not made for a final order granting cancellation of the certificate. It was only made to take proofs under the provisions of subdivision
We entertain no doubt of the sufficiency of this petition to give the court jurisdiction to act. Having that jurisdiction, the application of the State Commissioner of- Excise should have been granted. As said before, no application was made for a final order. Hone could have been made without proof, and it was for .the purpose of taking proof- that the State .Commissioner of Excise invoked the action of the court, and that was done in accordance with the practice which has prevailed in such cases since the decision of Matter of Cullinan, Kray Certificate (82 App. Div. 445). The petition of the" commissioner is in the nature of a'pleading. On the return day of the order to show cause, which the statute authorized to be issued on such a petition, the holder, of the' certificate against whom the application is made failing to answer or show cause, is in an attitude ■ similar to that of a defendant in a suit who fails to answer a complaint, and as against whom a judgment cannot be taken without proof of the cause of' action sét; forth in the Complaint, The petition in the matter now before us answering-,• as we think it' does?
The order appealed from should, therefore, be reversed, with costs of this appeal, and the' matter remitted to the Special Term for appropriate action, in accordance with the suggestion of this .opinion.
Ingraham, Laüghlin, Claree and Soott, J-J., concurred.
Order reversed, with ten dollars costs and disbursements, motion denied, with ten dollars costs, and matter remitted to Special Term. Order filed.