105 N.Y.S. 467 | N.Y. Sup. Ct. | 1907
On or about January 19, 1907, the respondent filed his verified application for a license authorizing him to traffic in liquors at premises 433 Ninth avenue, which is also 401 West Thirty-fourth street, New York city; and, thereupon, the application having been found to be correct in form, and no reason appearing on the face thereof why a license should not be granted, a liquor tax certificate was issued for the purposes mentioned.
On or about March 16, 1907, the petitioners, as executors and trustees under the will of Adolph Rupp who died February 14, 1907, seized of premises 406 West Thirty-fourth street, and whose will was admitted to probate March 29, 1907, instituted this proceeding, as resident taxpayers, for the revocation of respondent’s license, alleging that the respondent made false answers to the following questions in the application:
“ 9. Does the applicant intend to traffic in liquors under the certificate applied for in any building, yard, booth or other place, which is on the same street or avenue and within two hundred feet of a building occupied exclusively as a church or schoolhouse ? ”
To which respondent answered “ No.”
“ 13. How many buildings are there occupied exclusively as dwellings, the nearest entrance to which is within two hundred feet, measured in a straight line, of the nearest*3 entrance to the. premises where the traffic in liquors is intended to be carried on ? ”
To which respondent answered “ 4.”
“ 14. Has the applicant attached hereto a consent in writing that such traffic in liquors be so carried on in said premises during the term herein stated, executed by the owner or owners, or by the duly authorized agent or agents of such owner or owners, of at least two-thirds of the total number of buildings occupied exclusively for dwellings, the nearest entrance of each of which is within two hundred feet, measured in a straight line, of the nearest entrance to the premises described herein as those in which traffic in liquor is to be carried on, and acknowledged as are deeds entitled to be recorded ? ”
To which the respondent answered “ Yes.”
As to question nine, the petitioners allege that at the time the application statement was filed there was and now is at Nos. 412 to 420 West Thirty-fourth street, concededly within the prescribed radius, “ a building designed for and intended to be' occupied exclusively as a church.” This allegation is supported by the evidence, but the proof thereof does not in any degree negative the truth of the respondent’s statement. He was required by statute to state whether the contemplated traffic would be within 200 feet of a building occupied exclusively as a church. That the building in question was, when the application was filed, and now is in the hands of the builders in an unfinished condition, and not only unoccupied but unfit for occupancy, is undisputed. Under the statute, occupancy and not contemplated occupancy fixes the character of the building. The respondent’s answer to this question was, therefore, a proper one.
The answer to question thirteen was also correctly stated. There were and are but four buildings occupied exclusively as dwellings. This is now conceded.
This brings us to the answer to question fourteen. The respondent filed consents for Nos. 365 and 403 West Thirty-fourth street and 416 West Thirty-fifth street, front and rear. He concedes, however, that in the list of dwellings
But the respondent maintains that, conceding this consent to be void, he has complied with the statute since the entrance to the rear building of No. 416 West Thirty-fifth street is not within 200 feet’of the nearest entrance to his saloon; that, therefore, there -are but three dwellings within the prohibited radius, for two of which he has filed consents.
The rear building of 416 West Thirty-fifth street is reached through an independent hallway leading from the street through the front building to the yard, between the front and rear buildings. The respondent contends that the entrance from the street into this hallway in the front building is the entrance to the rear building which the statute contemplates and which is, admittedly, without the statutory limit. This contention is unfounded.
' Although the rear 'building is accessible only by means of the hallway mentioned, the entrance contemplated by the
The respondent is, therefore, able to avail himself of but two legally executed consents, whereas the statutory requirement is three, there being four dwellings within the limited radius.
But the respondent urges that, even conceding the failure of his application to furnish a sufficient basis for his certificate, the petitioners are not qualified to institute these proceedings as they are not taxpayers in that they.have neither paid nor been assessed for taxes as executors and trustees.
The petitioners are executors and trustees under the will of Adolph Rupp who died seized of premises No. 406 West Thirty-fourth street. Upon his death the legal title to these premises vested under his will in the petitioners in their representative capacity for the purpose of the trust created by their testator. Both under the will and by operation of law they are liable for the payment of taxes. They are, therefore, within the meaning of the statute, taxpayers.
It follows that the application must be granted.
Application granted.