Matter of Farley

106 N.E. 57 | NY | 1914

This is a proceeding under the Liquor Tax Law, Cons. Laws, ch. 34 (section 27, subd. 2), brought to obtain an order revoking and canceling a liquor tax certificate held by the respondent, for permitting the premises described therein to become disorderly. The question whether the respondent permitted the premises described in said certificate to become disorderly was one of fact. It is not claimed that this court can reverse the findings of fact, but it is urged that certain evidence received at the trial was erroneously stricken from the record by the court at Special Term.

It is necessary by the express terms of the statute to state in the petition the facts upon which the application for the revocation of the liquor tax certificate is based. A petition upon information and belief is wholly insufficient. (Matter ofPeck v. Cargill, 167 N.Y. 391; Matter of Wheaton v.Slattery, 96 App. Div. 102.) Such a petition may be supplemented by affidavits annexed thereto and referred to therein, in which the facts upon which the petition is based are positively stated. (Matter of Cullinan [Micha Certificate],76 App. Div. 362; affd., 173 N.Y. 610.) The petition including accompanying affidavits, if any, making up the application under the statute must apprise the certificate holder of the facts on which the application is based and evidence can be given upon the trial so far as the facts are fairly called to the attention of the certificate holder by the application but not otherwise. (SeeMatter of Plass, 71 App. Div. 488; affd. on opinion below,175 N.Y. 524.) Evidence of an occurrence or conversation which is independent of one described or narrated upon knowledge in the application should not be received on the trial of an issue joined by the petition and answer. We do not think, however, that testimony of an occurrence described or of a conversation narrated in an application should be rejected at the trial so long as it is confined generally to the particular facts upon which the application is based, and a variance, if any, is of detail and not such as to make the statement of fact in the application misleading. To sustain the admission of testimony it must be within the substantial scope of the recitals in the application. At least the major part of the evidence stricken out at Special Term in this proceeding did come within the substantial scope of the particular facts stated in the application. The ruling of the court in striking out such evidence was error. It should have been retained because it was within the general scope of the application or in any event but an unimportant variance in the detail of the conversation.

The evidence stricken out was not, however, of sufficient weight in connection with the other testimony received to require that the order be reversed because such evidence was not considered by the court at the Special Term upon the determination of the issues or by the Appellate Division in passing upon the weight of evidence.

The order should be affirmed, with costs.

WILLARD BARTLETT, Ch. J., WERNER, HISCOCK and CARDOZO, JJ., concur; HOGAN and MILLER, JJ., dissent.

Order affirmed.