Cullinan v. Horan

116 A.D. 711, 102 N.Y.S. 132, 1907 N.Y. App. Div. LEXIS 5

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 11, 1907
• Status: Published

Opinion

Jenks, J.:

This is an action by the State Commissioner of Excise against the holder of a Jiquor tax certificate and his surety, to recover the penalty of the excise, bond. The defendants answered separately. Upon the trial the surety company alone appeared, but it never cross-examined the plaintiff’s witnesses nor offered testimony. A* the close of the plaintiff’s case the defendant surety company moved to dismiss the complaint, but its motion was denied, under • exception, and the court, under exceptions, directed a verdict for the plaintiff and denied a motion for-a new trial made under section 999, of the Code of Civil Procedure.

It is contended that the learned trial court erred in the following " ruling’: Mr. Eandolph, the county treasurer, produced the papers filed by the holder of the certificate upon his application therefor, and testified that they were the originals on, file in his office.He was asked: “ Q. Are these the original documents on- file at your office? A. Yes. Q. Those indorsements were made by you in your handwriting, and that is your signature to them ? A. My clerk’s handwriting. Q. Upon the filing of this application and statement and execution of the bond, did you issue to him the certificate mentioned on the indorsement of that paper? A. I did. (Counsel for the appellant): I object to that as not the best evidence. It is always within the power of the Excise Department to procure the original. The Court: Are you offering them in evidence? (Plaintiff’s Counsel): Yes. The Court: Mark them. [Papers referred to admitted in evidence and marked Exhibits £ D’ and £ E.’] ” The objection was interposed after the question was answered, and there is nothing to indicate that it could not have been made before answer was made. Under such circumstances we are not bound to consider it. (Link v. Sheldon, 136 N. Y. 1.) There was no motion made to strike out the answer. Again there was no exception taken. However, I will consider the merits. The-objection “ I object to that as not the best evidence,” immediately followed by the statement “ It is always within the power of the Excise Department to procure the original,” plainly indicates that, the objection is made to the oral proof that the treasurer issued the certificate mentioned in the paper. I think that such oral proof of issue was competent. Subdivision 11 of section 17 of the Liquor Tax Law

* does not provide that the certificate shall be the only competent and sufficient prima facie evidence of all the facts stated therein, A case strongly in point is Commonwealth v. Dill (156 Mass. 226). In that case objection was taken to the oral proof of marriage on the ground that ,the record should be produced, and the court, per Holmes, J., said: “ It is true that the record by statute is presumptive evidence of the marriage (Pub. Sts., c. 145, § 29), but the record of a marriage is not like the record of a divorce, or other judgment or decree.' It is a mere memorandum or declaration of the fact which effected the result, not itself the fact, nor that which has been constituted the only evidence of the fact. (§ 31.) There is no reason why the oath of the person who did the act should be deemed inferior evidence to a written statement by him or another. Commonwealth v. Norcross, 9 Mass. 492; Commonwealth v. Waterman, 122 Mass. 43, 59; Commonwealth v. Stevenson, 142 Mass. 466, 468 ; State v. Marvin, 35 N. H. 22.” (See, too, Sprague v. Hosmer, 82 N. Y. 466.) Moreover, Hogers testifies that he -visited the holder’s premises in April, 1905, and then saw a liquor tax certificate for 1904 and 1905 posted in the window. This was competent evidence. (Commonwealth v. Brown, 124 Mass. 318.)

It is also contended- that the plaintiff failed to show that the bond was in force at the time of the alleged violations. The alleged violations of law were made on April 22, -1905, during the natural life of a liquor tax certificate and when such certificate was. in the possession of the holder. The bond was read in evidence. The obligation thereof was that during the period liquors were sold under the authority of the certificate the premises were not to be used for illegal purposes. (Cullinan v. Fidelity & C. Co. [Parker Cert.], 84 App. Div. 296; affd., on opinion below, 177 N. Y. 573.)

The-point is made that it cannot be presumed that the certificate issued continued in existence from June, 1904, until April 22,1905,' But the plaintiff did not rest upon presumption. The county treasurer testifies that during the year commencing May 1, 1904, and expiring April 30, 1905, the holder did not obtain any other liquor tax certificate. There is evidence, as I have.pointed out, that at the time of the alleged violation such certificate was in his posses^ sion and displayed in his place. And the excise agent testifies that when the holder sold the liquor to the agents he said to them that he only had “ a growler’s license and L can’t sell by the drink.” The term “growler” is “slang U. S.” for “a Vessel, as a pitcher, jug, pail or can, brought by a customer for beer.” (Century Dictionary.)

If there were any doubt as to the meaning of the term, it is dissipated .by the explanation of the speaker, “and I can’t sell by the . drink.” I see no error in the record that would justify the disturbance of the judgment, and I, therefore, recommend that it and the order be affirmed, with costs.

Hirschberg, P. J., Hooker, Gaykor and.Miller, JJ., concurred.

Judgment and order affirmed, with costs.

See Raws of 1896, chap. 113. added by Laws of 1900, chap. 367.— [Rep,