In re Clement

| N.Y. App. Div. | Nov 23, 1910

Woodward,. J.:

The evidence of the special agents of the Excise Department, who are in no sense interested witnesses, clearly establishes that on the ,24th day of February, the 5th day of March and the 17th day of March, 1910, the premises at 26 Myrtle avenue, borough of Brooklyn, were occupied by the appellant 'under liquor tax certificate Mo. 9672; that in a room just in the rear of the barroom, and connected therewith-by a door, tables were provided for drinking, and that the special agents, visiting this room in the performance of their duties, were approached by lewd women and solicited to go with them to a neighboring hotel for immoral purposes; that these women approached the special agents immediately upon-entering the place; that they joined with the- witnesses in " drinking; that they made vulgar and indecent exposures -of their persons to the witnesses; the waiter joining in the drinking and in exposing the persons of these women, and assuring-the witnesses that these women would “give them a good time.” The'saloon is not a large .one; the evidence-is that one waiter only was employed, and. the transactions above mentioned took place after midnight and the drinking in each- instance was protracted until after one o’clock, drinks being .served after that hour. This is certainly not an orderly condition ; it is’not such a condition as the-holder, .of a liquor tax-certificate covenants with the-State' to preserve as a condition of retaining his. license. One isolated. case might not be sufficient to establish the existence, of a disorderly place; such a thing might occur once in even the best regulated places, but here, were three occasions, about two weeks apart, the witnesses being different' men in each instance, and practically the. same thing occurred on each occasion, the appellant’s waiter, acting in .conjunction with ■ the women, and participating in the lascivious exhibitions. To question ’ that tlfis constituted the' premises a disorderly place Would bp- to affront intelligence and the instincts of Common’ decency, and we fully concur in the conclusion reached by the learned, court at Special Term.

■ We are unable to discover in chapters-144 and 350 of the Laws . of 1908 (amdg.' Liquor Tax Law [Gen.-Laws, chap. 29;' Laws of. Í896, chap. 112], § 17, subd. 8) or in subdivision 8 of section -15. of the present Liquor, Tax Law (Consol.’ Laws, chap; 34 [Laws of 1909, chap. 39}, as amd. by Laws of. 1909, chap. 281, and since amd. by LáwS of 1910; chaps. 485, 503) any violation of any of tiie defend- ■ ants’ constitutional rights..' The case of People ex rel. Bernard v. McKee (59 Misc. 369" court="N.Y. Sup. Ct." date_filed="1908-05-15" href="https://app.midpage.ai/document/people-ex-rel-bernard-v-mckee-5411521?utm_source=webapp" opinion_id="5411521">59 Misc. Rep. 369; affd., 126 A.D. 954" court="N.Y. App. Div." date_filed="1908-06-15" href="https://app.midpage.ai/document/martin-v-smith-5207802?utm_source=webapp" opinion_id="5207802">126 App. Div. 954) seems to have properly disposed of this question.

The order appealed from should be affirmed, with costs. ■

Hirschberg, P.' J., Thomas and Rich, JJ., concurred;. Jenks, J., dissented. . -

Order affirmed, with ten dollars costs and disbursements.