80 N.Y.S. 792 | N.Y. App. Div. | 1903
Lead Opinion
The relator conducts a brewery. It advanced to Carl Schramek and Gustave Korn, who applied to the excise department for a liquor tax certificate, the amount necessary to pay the liquor tax and took an assignment of the certificate containing the usual power of attorney authorizing the brewery to surrender the certificate and
The relator’s claim against the' Excise Department is founded on the liquor tax certificate which has been assigned to it. Manifestly. the right of the assignee to the rebate is no greater than would be that of its assignors had not the certificate been assigned. (People ex rel. Miller v. Lyman, 156 N. Y. 407; People ex rel. Frank Brewery v. Cullinan, 168 id. 258.) The contract between the. People of the State and those to whom the liquor tax certificate was. issued with reference to allowing any rebate, was conditioned upon
It follows that the order should be affirmed, with costs.
Van Brunt, P. J., Ingraham and McLaughlin, JJ., concurred; O’Brien, J., dissented.'
Dissenting Opinion
I dissent, thinking that the Legislature did not intend in such a case that a forfeiture should be enforced. In Matter of Lyman (163 N. Y. 536) the court said: “At the time this proceeding was commenced, the appellant did not hold the certificate, but had prior thereto voluntarily surrendered it. * * * The question, therefore, is not whether his license could be canceled if he still held it, but whether it can be canceled for the sole purpose of forfeiting the rebate. The argument that, as he was not entitled to receive the certificate, he was not entitled to hold it, may be effective to deprive him of it as a license, and not effective to forfeit his right to the rebate. In the former case, the statute should be construed so as to accord to fraud no favor; in the latter case, it should be so construed as not, by a hostile construction of doubtful phrases, to visit a penalty or forfeiture upon a former certificate holder. * * * Forfeitures are odious in law.”
These words apply even more forcibly in the case at bar, wherein a third party who, innocent of any misrepresentation on the part of those who held the certificate, advanced the money which paid for the certificate and is now seeking its repayment, the business having been discontinued and abandoned and the certificate destroyed by fire two weeks after it was issued. The privileges granted by it were thus never enjoyed; no attempt or intention exists to do business under it, and no proceedings of any kind have been instituted
Upon the ground, therefore, that this case is not such as warranted the commissionér in refusing to grant the petitioner the rebate sought, I think that the application for the peremptory writ of mandamus should have been granted, and that the order and judgment appealed from should be reversed.
Order affirmed, with costs.