Cullinan v. Young

41 Misc. 3, 3 Liquor Tax Rep. 159, 83 N.Y.S. 581

• Court: New York Supreme Court
• Decided: June 15, 1903
• Status: Published

Opinion

Garretson, J.

The prayer of the petition should he granted and the respondent’s certificate revoked and can-celled. The respondent, a hotel-keeper, concededly sold whiskey on Sunday, which was drunk on the premises, to two persons who happened to he special agents of the Department. These men were casual callers. The testimony leads quite irresistibly to the conclusion that they were not guests within the meaning of section 31, subdivision 2, of the Liquor Tax Law; that they did not resort to the hotel for the purpose of obtaining and did not order and actually obtain at such time m good faith a meal therein; that the respondent knew or should have known from what transpired at the time that such was the fact. The serving of the sandwiches was a mere subterfuge. It was incidental to the sale of the whiskey. The men ordered whiskey and said nothing in the first instance about a meal or even a sandwich. The latter was urged upon them by the waiter after consultation with the respondent. The section above cited (subd. k) provides that “ the keeper of a hotel, may sell liquor to the guests of such hotel * * * with their meals,” the meal being the primary and the liquor the secondary thing. Regarding the callers as guests and the sandwich as a meal for the purpose of this discussion only, the occurrence was nothing less than a selling of meals to the guests with their liquor, a palpable evasion of the letter and spirit of the law and a practical transposition of its express terms to accomplish such evasion, the sale of liquor being t-hus made the primary thing and the sale of the sandwich being secondary and incidental thereto.

Petition granted, with costs and disbursements, as in a special proceeding.

Petition granted, with costs and disbursements.