13 Misc. 522 | The Superior Court of the City of New York and Buffalo | 1895
A writ of certiorari, heretofore duly issued out of this court, brings before us for review the refusal of the board of excise to grant and issue a saloon license to the relator, Thomas Cairns, for the premises No. 700 Third avenue, in the city of New York. The relator, for 14 years last past, has been engaged in selling wines and liquors at retail, under licenses granted by the board of excise in this city, and for 3 years last past has been engaged in such business in Twelfth street, in said city, under licenses issued to him in his own proper name by the commissioners constituting the board of excise. For a period of upwards of 40 years the saloon business has been conducted on the premises No. 700 Third avenue, and continuously during that time, under license or permission of the board of excise, down to the 6th day of April, 1895. The relator purchased the good will of said business and the then existing license from the licensee, one Thomas B. Nugent, whose license expired on the 6th day of April, 1895, and obtained from the landlord a lease of the premises for the term of 10 years, and entered into engagements and obligations in the fitting up of the place as a saloon for carrying on the liquor business. The business, by reason ofthe long period of time it had been conducted upon the premises, had acquired a good will which had a large commercial value. The board of excise has a general rule of long standing, that is strictly adhered to, which provides that the number of saloons shall not be increased, and that an applicant for a license must first surrender for cancellation a license granted by the board of excise with his application for a license, so that in granting the application there may be no increase of the number of places licensed for the sale of
“The application of Thomas Cairns for a saloon license for the premises No. 700 Third avenue is rejected, and a license refused, for the reason that Thomas Cairns was not licensed at these premises prior to April 29, 1893, and the premises are on the same street with, and the nearest entrance to the said premises is within 200 feet of, the nearest entrance to a building occupied exclusively as a school.”
It is contended by the counsel for the relator that the edifice known as “St. Agnes’ Parochial School” was not occupied exclusively as a schoolhouse, and therefore was not an obstacle to the granting of the license. We do not agree with this contention. It seems to us that the facts disclosed before the respondents fully warrant the conclusion that the building in question was occupied exclusively as a school. The determination of the questions here presented depends upon the construction that should be given to section 43 of chapter 401 of the Laws of 1892, as amended by chapter 480 of the Laws of 1893. The section reads as follows:
“No person or persons, who shall not have been licensed prior to the passage of this act, shall hereafter be licensed to sell strong or spirituous liquors, wines and beer, in any building, not used for hotel purposes, and for which a license does not exist at the time of the passage of this act, which shall be on the same street or avenue, and within 200 feet of a building occupied exclusively as a church or schoolhouse.”
The respondents claim that the effect of this section is to take from them the power to grant a license'for a saloon within 200 feet of a church or schoolhouse to any person other than to the individual who held such license at the time of the passage of the act. They refused the license solely on the ground that the relator did not hold a license for this particular place at the time of the passage of the act. They admit that he has in every other respect met the requirements of the law and of their board, and established his eligibility to receive a license. The relator, on his part, contends (1) that section 43 applies only to- a building for which a license did not exist when the act was passed; and (2) that the prohibition against persons not then licensed applies only against licensing them for buildings, within the prohibited distance, for which a license did not then exist; and that, as to the buildings for which licenses then did