82 A.D. 445 | N.Y. App. Div. | 1903
This proceeding was instituted by the State Commissioner of Excise by verified petition and an affidavit of the facts which was made a part of it, accompanied by an order requiring the appellant to show cause why his liquor tax certificate" should not be revoked, pursuant to the provisions of subdivision 2 of section 28 of the Liquor Tax Law (Laws of 1896, chap. 112, as amd. by Laws of 1901, chap. 640). On the return day designated in the order to show cause, the appellant having objected to the jurisdiction of the court and having "also by objection raised the question that the provision of the law requiring him to present and file a verified answer to the petition, or in default thereof that its averments would be adjudged to be true, is unconstitutional (Const, art. 1, § 6), which objections were overruled, and having thereupon refused to present and file an answer, the order appealed from was granted revoking the certificate for violations of the law set forth in the petition and affidavit.
■ In Matter of Cullinan, Micha Certificate (76 App. Div. 362; affd., 173 N. Y. 610) we held that a formal petition made by the State Excise Commissioner setting forth the essential facts upon information and belief, when accompanied as in this instance by an affidavit containing positive averments of the facts "within the personal knowledge of the affiant,- constituted a sufficient compliance with the requirements of the statute even prior to the amendment of 1901. In .that case the appellant was deemed to have waived the constitutional question by the filing of a verified answer. The question is, however, squarely presented on this appeal and must now be determined.
The liquor tax certificate issued under the existing law is essentially different from the former license. The license was a mere personal privilege which the holder took subject to all the condi
It is contended by the learned Counsel for the respondent that what has been quoted comprises dictum merely, and that the decision in the Gm'gill case was based wholly upon the insufficiency of the petition. Judge Landon dissented upon the- ground substantially that the holder of the Certificate in accepting .it accepted the condition imposed by the Legislature as the form of inquiry for violations. ' Judge Martin concurred in Judge O’Brien’s opinion .solely.upon the ground that the petition was inadequate.- The
It is further contended on behalf of the respondent that inasmuch as the order appealed from recites that the learned justice at Special Term offered to receive an unverified answer from the appellant, the question of the unconstitutionally of the act is unavailing to him. Such an offer was not effective to cure the act or to dispense with the necessity of taking proof of the truth of the violations charged in the petition and affidavit. The logic of the reasoning in the Cargill case is quite as potent and convincing when addressed to the situation presented by the refusal of the appellant to accept the judicial offer. Indeed, it would seem that the presentation of an unverified answer where the statute requires one under oath, the unverified answer to be accepted by the court as an act of grace, is a virtual confession not only of the truth of the charges but that the accused dare not deny them under oath. There is no justification in law for the placing of a litigant in a position where his guilt must be assumed and a forfeiture of property decreed unless he either perjure himself by his answer if guilty, or in order to avoid that result consent to plead by favor in such a form as will tend at least to indicate his own consciousness of the falsity of his defense.
The order should be reversed.
Goodrich, P. J. Bartlett, Woodward and Hooker, JJ., concurred.
Order reversed, with ten dollars costs and disbursements. Order to be settled before Mr. Justice Hirschberg.