57 N.Y.S. 634 | N.Y. App. Div. | 1899
The respondent the Malconi Brewing Company had a liquor tax certificate authorizing the sale of liquor on the Washington Park baseball grounds in the borough of Brooklyn. In the application for the license, the location of the bar was stated to be on the north side of Third street, 350 feet east of Third avenue. There was a bar on the premises at the location named, but when games were being played on the grounds, kegs of beer were placed at other locations; waiters would take the orders of spectators on the various stands through the grounds and bring these orders to men in charge of the kegs, who would furnish them glasses of beer to be delivered to the customers; the waiters on receiving the beer would give checks or tickets for the beer taken, for which they were held responsible, and would collect money for their sales from the customers. The petitioner claims that this mode of carrying on the sale of liquor was a violation of the Liquor Tax Law, and for such violation he seeks, under the provisions of section 28 of the statute (Laws of 1896, chap. 112, as amd. by Laws of 1897, chap. 312), to revoke the respondent’s license.
It is very doubtful whether the Malcom Brewing Company, on the record before us, was responsible for the sale of liquor which is claimed to have been illegal. The business was carried on by one Harry M. Stevens, to whom the company sold beer and gave the use of the certificate. The sales were made entirely by Stevens or his agents, the profits of the business.were his and the title to the liquor sold was in him. We do not see that any relation of agent or servant existed between Stevens and the company. Having permitted the use of the certificate by Stevens for the sale of liquor at the bar, or place specified in the certificate, it may be that, for any infraction of the law there committed, or committed in connection with the business there carried on by Stevens, the company would be responsible. But if' the sale of liquor in the field was so disconnected with the business carried on in the barroom as to be beyond the permit of the license, it is questionable whether it would not' be equally beyond.the implied authority given by the company to Stevens, and solely the illegal act of Stevens himself.
However this may be, we are of opinion that no violation of the law was proved, nor any false, statement in the application for the
It is plain that the delivery of beer to the waiters by the man in ■charge of the keg did not constitute the sale. The system adopted •of requiring tickets or vouchers from the waiters was simply a mode ■of insuring a proper accounting for the money received by them. The sales in this case occurred when the waiters delivered the beer "to the spectators on the grounds and received payment therefor. That they got the beer from the keg in the field is of no more consequence than if they had taken it from the cellar. The sales so made by the waiters should fairly be considered as mere incidents to the main business carried on in the barroom, and not as consti"tuting the maintenance of a separate and independent place for the sale of liquor.
The order appealed from should be affirmed, with ten dollars costs •and disbursements.
All concurred.
.Order affirmed, with ten dollars costs and disbursements.