65 N.Y.S. 538 | N.Y. App. Div. | 1900
The defendant Fichólas Sellermerhorn made application for a liquor tax certificate, and, at the same time, presented to the county treasurer the usual bond with the defendant, the Fidelity and Deposit Company of Maryland, as surety. The tax certificate was issued to him, and thereafter he entered upon the business which the certificate authorized, and made, as the proof shows, three sales of liquor. It is not claimed that the sales so made violated any of the provisions of the Liquor Tax Law, provided the tax certificate authorized, the defendant Schermerhorn to traffic in liquor. It is claimed by the respondent that the tax certificate afforded no protection to the person to whom it was issued, because the applicant had previously been convicted of a felony. The case presents only a question of law, all the facts being admitted or undisputed.
The Liquor Tax Law provides (Laws of 1896, chap. 112, as amd. by Laws of 1897, chap. 312, § 23), “ No person who has been, or shall be, convicted of a felony ” shall traffic in liquor. Section 17
As conditions precedent to the issuing of a tax certificate, a written application in the form prescribed by the Liquor Tax Law, and also a bond in the form prescribed by the same law, must be presented to the county treasurer. The prescribed form of the bond does not bear a construction making it an assurance of the truthfulness of the statements in the application, nor would it be taken as a breach of any of the conditions of the bond if the statements were in fact all false. The bond runs with the future acts of the applicant in the conduct of the business which he is to be authorized to do; it is an assurance that such authorized business will be conducted in the manner prescribed by the Liquor Tax Law and not otherwise; that the privilege of trafficking in liquor will not be abused, and all the require-, ments of the law will be observed in the conduct of the business. It is a contract with the State touching the conduct of a business. It is not- an assurance that the applicant was never convicted of a felony. It is not an assurance that he would not enter upon the business of trafficking in liquor. The State has required no bond from the prohibited class, nor has it required a bond from any citizen that he will not traffic in liquor. If the defendant Schermer
The judgment should he reversed, with costs.
All concurred, except Edwards, J., not sitting.
Judgment reversed on the law and new triaj. granted, with costs to abide the event.