H. Koehler & Co. v. Clement

125 A.D. 886, 111 N.Y.S. 151, 1908 N.Y. App. Div. LEXIS 2925

Opinions

Scott, J.:

The relators, as assignees of a liquor tax certificate issued to one Joe Levy, seek to compel the payment of a rebate under the provisions of section 25 of the Liquor Tax Law.

* Their application is resisted upon the ground that said Levy was not “ authorized to sell liquors under the provisions of this act/’ because he falsely stated in his application for the certificate on April 19, 1907, “ that he has not been convicted of a violation of said law within three years prior to the date of this application.” (See Liquor Tax Law, § 23, subd. 1, clause d, as amd. by Laws of 1905, chap. 680.) If this statement was untrue, the application for a writ was properly denied. (People ex rel. Ochs v. Hilliard, 81 App. Div. 73.) It is undisputed that on February 19, 1905, the said Levy was tried in the Court of Special Sessions upon a charge of having violated the Liquor Tax Law, and was found guilty, but that sentence was suspended and has never been imposed, and that the time within which sentence thereon could have been imposed had expired when the alleged false statement was made. (Code Grim. Proc., § 470a, added by Laws of 1893, chap. 651.) The question is, whether the finding of guilty by the court, in this case equivalent to the verdict of a jury, although not followed by judgment, is a conviction under section 23 of the Liquor Tax Law. A similar question, involving the right to vote, has recently been decided by this court (People v. Fabian, 126 App. Div.---), and by analogy with that case it would appear that Levy was convicted of a violation of the Liquor Tax Law within three years before he applied for a certificate and that his statement to the contrary was false.

It follows that the order appealed from must be affirmed, with ten dollars costs.

Ingraham, McLaughlin andLAUGHLiN, JJ.,concurred; Clarke, J., dissented.

See Laws of 1896, chap. 112, § 25, as amd. by Laws of 1903, chap. 486. — [Rep.