40 N.Y.S. 1106 | N.Y. Sup. Ct. | 1896
The petition herein shows, and it is admitted, that at the time of the passage of chapter 112 of the Laws of 1896, on March 23, 1896, known as the “ Liquor Tax Law,” one Philip Easier conducted the liquor business at No. 108 Union avenue,
In the law of 1896 it is provided that consent of two-thirds of the owners of dwelling-houses within 200 feet of the place where the traffic in liquor is to be carried on shall first be obtained, “ except that such consent shall not be required in cases where such traffic in liquor is actually, lawfully carried on in said premises so described in said statement when this act takes effect.” The prohibition in the law of 1892 forbade the granting of a license to sell liquor in gay building within 200 feet of a church or schoolhouse, “ and for which a license does not exist at the time of the passage of this act.” This section of the Excise Law has been construed by the Court of Appeals, in People ex rel. Cairns v. Murray, 148 N. Y. 171; 42 N. E. Repr. 584; .and that court held that “ when the licensee, who was then established when the law took effect, abandoned the business, the prohibition became absolute as to all new applicants.” I think' that the reasoning by which the Court of Appeals arrived at its conclusion in the Cairns case is equally applicable in construing'subdivision 8 of section 17 of the Liquor Tax Law, The object sought to be attained was to prevent the carrying on of the liquor business within 200 feet of buildings occupied exclusively as dwellings, without the consent of two-thirds of the owners thereof; and, while the purpose of the legislature was to protect parties established, in business within the
The prayer of the petitioner must be granted.
Ordered accordingly.