In re Clement

116 A.D. 148, 20 N.Y. Crim. 441, 101 N.Y.S. 683, 1906 N.Y. App. Div. LEXIS 2623

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 7, 1906
• Status: Published

Opinion

Patterson, J.:

The State Commissioner of Excise presented a petition to a justice of the Supreme Coúrt praying for an order revoking and canceling a liquor tax certificate theretofore issued to Israel Cohen. The application was made under subdivision 2 of section 28 of the Liquor Tax Law, which provides,'in substance, that at any time after a liquor tax certificate lias been issued under the provisions of the Liquor Tax Law such certificate may he revoked and canceled if material statements made in the previous application of the holder for the certificate were false, or if the consents required by section 1Y of the act were not properly filed, or if the holder of the certificate was not for any reason entitled to- receive or hold the same or to traffic in liquors, or if any provision of the act had been violated at the place designated in the certificate as the place where such traffic, is to be carried on. By subdivision 8 of section 1Y of the Liquor Tax Law it is provided that when the nearest entrance to the premises described, in the application as those in which traffic in liquor is to be carried on is within 200 feet, measured in a straight line, of the nearest entrance to a building or buildings occupied exclusively as a dwelling, there shall also be so filed simultaneously with the statement a consent in writing that such traffic in liquors be so carried on in said premises during a term therein stated executed by the owner or owners or by a duly authorized agent or agents of such owner or owners of at least two-thirds of the total number of such buildings within 200 feet so occupied as dwellings.

The petitioner in this proceeding set forth in his petition facts relating to the issuance of the certificate to the relator and the furnishing by him of a statement at the time he made his application for the certificate and the granting of such certificate on the faith of such statement. He further set forth on information and belief that in that statement the applicant represented that there were no buildings occupied exclusively as dwellings, the nearest entrance to which was within 200 feet, measured in a straight line, of the nearest entrance to the premises where the traffic in liquors was intended to he carried on. He further alleged on information and belief that the statement was a material statement and was and is false in that there were and are four buildings occupied exclusively as dwell- • ings, the nearest entrance to each of which was within 200 feet, measured in a straight line, of the nearest entrance to the premises where the traffic in liquors was to be and is carried on under the said certificate. He also, on information and belief, alleged that Cohen did not have attached to his application statement a consent in writing that such traffic in liquors be so carried on in said premises during the term therein stated, executed by the owner or owners, or by the duly authorized agent or agents of such owner or owners of at least two-third's of the total number of buildings occupied exclusively for dwellings, the nearest entrance of each of which is within 200 feet, measured in a straight line, of the nearest entrance, ' to the premises described in the certificate. He alleges further, on information and belief, that said Cohen in-response to the following question, viz.: Q. “ Do such- consents, heretofore and herewith . filed, constitute the required number, and ■ comply with the provisions of the Liquor Tax Law ? ” answered “ Yes.” Again on information and belief it is alleged in the. petition that that statement was material and false and that there were four buildings occupied /exclusively as dwellings, the nearest entrance of which was within -200 feet measured in'a straight line as aforesaid, and that no consents of owners of such buildings occupied exclusively - "as dwellings within 200 feet were attached toi the application statement. The petition then declares that'the .sources of the petitioner’s informatioii and the grounds of his belief, as to the matters - alleged on information and belief are the public records in the oifi'ces of the State Commissioner of Excise and the special deputy commissioner. of excise for the boroughs of Manhattan and the Bronx; also, the affidavit of Henry Waterman attached to the petition and ' ■made a part ^thereof. Waterman, in his affidavit, states that he. is, and for some years had been, a special agent of the State -Commissioner of Excise under the Liquor Tax Law; that lie and another person on the 2d of June, 1906, measured in a straight line.the distance from the entrance to Hos. 177 and- 179 Monroe street, in the borough of Manhattan, the place Where Israel Cohen trafficked " ' in liquor under the liquor tax certificate issued to him., to the nearest entrance to Hos. 187,. 18-9 and 191 Monroe street and Ho. 63 Montgomery street; that the -distance from the nearest entrance to the premises at which traffic in liquor was so carried on to the nearest entrance to Ho. 187 Monroe street was found to be 146 feet and two inches; that the distance from the nearest entrance to said premises to the nearest entrance'.to Ho. 189 Monroe- street-was found to be 166 feet and two inches; that the distance from the nearest ent-ranee to said premises to the nearest entrance to Ho. 191 Monroe street was.. found to be 186 feet and seven inches, and that the. distance from the nearest entrance to said premises to the nearest entrance to Ho. 63 Montgomery street was found to be 188 feet. -As.to the character of the occupation of the four buildings Hos.-187, 189 and 191 Mon- i roe street and Ho, 63 Montgomery street, Waterman deposed that he was informed by occupants of those buildings that they were on the day the certificate was issued and some years theretofore had been continuously occupied exclusively as dwellings, and that from his own observation he verily believed them to have been so occupied.

On the 19th day of July, 1906, this petition was presented to a justice of the Supreme-Court in the borough of Manhattan, in the county of New York, and an order was obtained returnable on the 27th day of July, 1906, requiring Cohen, the holder of the certificate, to show cause why the liquor tax certificate should not be revoked and canceled upon the grounds set forth in the petition and a temporary restraint was imposed by that order upon Cohen surrendering and transferring the certificate except as expressly authorized by statute until the final determination of the proceedings. On the return day of the order to show cause Cohen, the holder of the certificate, appeared by counsel, who moved to dismiss the proceeding on the ground of the insufficiency of the moving papers and the petitioner moved to have the proofs taken by the court in accordance with subdivision 2 of section 28 of the Liquor Tax Law, and both motions having come on to be heard, on the 1st of August, 1906, the court ordered that the application of the petitioner be (and the same was) denied in all respects and the application of the respondent to dismiss the proceeding was granted, with-costs. From that order the Commissioner of Excise now appeals.

It is apparent that the learned justice at Special Term‘acted upon the application of the State Commissioner of Excise as if the matter had been brought up for final determination upon a motion made on the return day of the order to show cause by the attorney for the holder of the certificate to dismiss the proceeding. In the opinion of the learned justice he says that “hearsay evidence and conclusion that certain premises deposed, upon measurement to be less than two'hundred feet from their nearest entrances to the nearest entrance of the premises where traffic in liquors is conducted have been occupied exclusively as dwellings, for so deponent was informed by occupants thereof and from his own observation verily believes to have been so occupied, are insufficient upon which to grant cancellation of the certificate herein.” The application was not made for a final order granting cancellation of the certificate. It was only made to take proofs under the provisions of subdivision *2 of section 28 of the Liquor Tax. Law. What appeared in the. petition and. in the affidavit of Waterman was sufficient to give .the court jurisdiction to entertain the proceeding. While it is true that mere allegations on information and belief unsupported in any way may .be ineffectual to set the court in motion in a proceeding of this character (Matter of Peck v. Cargill, 167 N. Y. 391), yet it has not been thus far held that where the sources of information. are disclosed and particular reference is made 'to those, sources and where proof is presented in or with the petition of the existence of facts which prima facie entitle the petitioner to the relief demanded, such a petition is insufficient to invoke the action of .the court. Two of the. important and jurisdictional facts' alleged in this, petition are, first, .the distance of certain structures or dwellings from the nearest entrance to Cohenes premises; and, second, the use to which these buildings or structures are and were applied. The distances are sworn to by Waterman, who made the measurements in connection with, another person. The use of the buildings was ascertained -by Waterman from inquiry, of residents therein and from his own observation that they were dwelling, houses. The other facts stated, in the petition consisted of the contents of documents on file, and express and distinct reference is made to them.

We entertain no doubt of the sufficiency of this petition to give the court jurisdiction to act. Having that jurisdiction, the application of the State Commissioner of- Excise should have been granted. As said before, no application was made for a final order. Hone could have been made without proof, and it was for .the purpose of taking proof- that the State .Commissioner of Excise invoked the action of the court, and that was done in accordance with the practice which has prevailed in such cases since the decision of Matter of Cullinan, Kray Certificate (82 App. Div. 445). The petition of the" commissioner is in the nature of a'pleading. On the return day of the order to show cause, which the statute authorized to be issued on such a petition, the holder, of the' certificate against whom the application is made failing to answer or show cause, is in an attitude ■ similar to that of a defendant in a suit who fails to answer a complaint, and as against whom a judgment cannot be taken without proof of the cause of' action sét; forth in the Complaint, The petition in the matter now before us answering-,• as we think it' does? the requirements of the statute, and the application having been expressly made to the court to take proofs, we are of the opinion that that application should have been granted, and the court should either have itself taken the proof or sent it to a referee for that purpose.

The order appealed from should, therefore, be reversed, with costs of this appeal, and the' matter remitted to the Special Term for appropriate action, in accordance with the suggestion of this .opinion.

Ingraham, Laüghlin, Claree and Soott, J-J., concurred.

Order reversed, with ten dollars costs and disbursements, motion denied, with ten dollars costs, and matter remitted to Special Term. Order filed.