146 N.Y.S. 473 | N.Y. App. Div. | 1914
On September 27, 1912, the respondent, Alexander Spier, applied for a liquor tax certificate to cover the year beginning October first. In his application he stated that liquors were to be sold at Nos, 2025-2027 and 2029 Lexington avenue, borough of Manhattan, in “Front room; ground floor; south, 2029, side or end of building.” He also stated that he intended to carry on a hotel in the premises, and that said premises had been continuously operated as a hotel since 1889.
The evidence showed in the most conclusive manner that the hotel portion of the building, that is, the portion above respondent’s liquor saloon, was conducted as a disorderly house and an immoral resort. The respondent strives to shield himself behind the plea that it is not shown that he had anything to do with the hotel portion of the business, which it is conceded was conducted by the Baltic Hotel Company.
This plea is the only one upon which respondent seeks to sustain the order appealed from, and is presumably the one upon which the Special Term acted, since no other defense to the prayer of the petition is apparent upon the record. If such a plea is to succeed an easy way will be opened to evade the pro
It appeared without contradiction that there was direct communication between respondent’s barroom and the hallway and staircase leading to the hotel rooms which were used for disorderly purposes. This of itself was sufficient to justify the revocation of the liquor tax certificate. This has already been held by the Appellate Division in the Third Department. (Matter of Farley, Hogan Certificate, 151 App. Div. 291.) Indeed, the violation of the statute in this regard is plain. Furthermore, we are of the opinion that the mere concession that the hotel portion of the premises was conducted by the Baltic Hotel Company was not sufficient, without other proof, to rebut the presumption that the respondent “permitted and suffered ” the premises to become disorderly in the face of his declaration that he proposed to carry on the hotel, and of the close connection between the hotel and the barroom.
The petition also alleged as a reason why the liquor tax certificate should be revoked that the respondent had sold liquor on Sunday contrary to law, and. the petitioner was prepared and offered to prove this allegation.
The trial took place on September 30, 1913, and the court refused to try the issue as to unlawful selling because it would be a waste of time, since the certificate would expire on the next day. This was error. It has been uniformly held that the expiration of the certificate or its surrender for rebate is not a bar to a proceeding for cancellation. The right to cancellation where the evidence warrants it exists at the date of the institution of the proceeding, and is not impaired by the subsequent
For these reasons the order appealed from must be reversed and a new trial granted, with ten dollars costs and disbursements to the petitioner, appellant.
Ingraham, P. J., McLaughlin, Clarke and Hotchkiss, JJ., concurred.
Order reversed and new trial granted, with ten dollars costs and disbursements to the petitioner, appellant. Order to be settled on notice.