In re Washburn

New York County Courts

In re Washburn

2 Liquor Tax Rep. 365, 32 Misc. 303, 66 N.Y.S. 732

DecidedJuly 15, 1900

StatusPublished

This text of 2 Liquor Tax Rep. 365 (In re Washburn) is published on Counsel Stack Legal Research, covering New York County Courts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Washburn, 2 Liquor Tax Rep. 365, 32 Misc. 303, 66 N.Y.S. 732 (N.Y. Super. Ct. 1900).

Pincite

Opinion

Van Etten, J.

An order was made in the above-entitled proceeding revoking and canceling the liquor tax certificate issued to Pasquale Della Morte on the ground that the consents of property owners had not been obtained as required by section 17 of. the Liquor Tax Law.

It appeared upon the hearing that there were two houses occupied exclusively as dwellings within two hundred feet of the saloon where liquor was sold under said certificate, and that the consents of the owners of said dwellings had not been obtained. [366]*366In the application for said certificate said defendant stated that there were no houses within two hundred feet of said saloon. This was false. The Liquor Tax Law (§28), provides that proceedings may be taken to revoke and cancel the certificate, among other things, “ if the consents required by section 17 are not properly filed as required by said section.” It further provides that if the evidence establishes such facts, an order shall be granted revoking and canceling the certificate, and “ said order shall also provide that the holder of said liquor tax certificate, or any other person having such certificate in his possession or under his control, shall forthwith surrender said certificate to the officer who issued the same, or his successor in office.” Also that all the rights of the holder of said certificate shall cease upon the filing and service of said order, and that the said certificate shall be immediately surrendered to the officer who issued the same.

This proceeding is of a summary nature, and is intended to immediately stop persons from selling liquor who have not the lawful right to do so.'

A stay of proceedings after entry and service of the order is not contemplated by said act.

It was held in Matter of Auerbach to Revoke and Cancel Liquor Tax Certificate Issued to Johannsen, 31 Misc. Rep. 46, that “ the order is self-executing, and upon its entry and due service the rights of the holder by virtue of the certificate ‘ shall cease.’ Therefore, a stay, operating only upon future proceedings, cannot affect the legal status of the party as already fixed, by law, and with or without a stay, his further acts under the certificate would be in violation of the penal provisions of the statute.”

The application for a stay is, therefore, denied.

Application denied.

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Van Etten, J.

An order was made in the above-entitled proceeding revoking and canceling the liquor tax certificate issued to Pasquale Della Morte on the ground that the consents of property owners had not been obtained as required by section 17 of. the Liquor Tax Law.

It appeared upon the hearing that there were two houses occupied exclusively as dwellings within two hundred feet of the saloon where liquor was sold under said certificate, and that the consents of the owners of said dwellings had not been obtained. [366]*366In the application for said certificate said defendant stated that there were no houses within two hundred feet of said saloon. This was false. The Liquor Tax Law (§28), provides that proceedings may be taken to revoke and cancel the certificate, among other things, “ if the consents required by section 17 are not properly filed as required by said section.” It further provides that if the evidence establishes such facts, an order shall be granted revoking and canceling the certificate, and “ said order shall also provide that the holder of said liquor tax certificate, or any other person having such certificate in his possession or under his control, shall forthwith surrender said certificate to the officer who issued the same, or his successor in office.” Also that all the rights of the holder of said certificate shall cease upon the filing and service of said order, and that the said certificate shall be immediately surrendered to the officer who issued the same.

This proceeding is of a summary nature, and is intended to immediately stop persons from selling liquor who have not the lawful right to do so.'

A stay of proceedings after entry and service of the order is not contemplated by said act.

It was held in Matter of Auerbach to Revoke and Cancel Liquor Tax Certificate Issued to Johannsen, 31 Misc. Rep. 46, that “ the order is self-executing, and upon its entry and due service the rights of the holder by virtue of the certificate ‘ shall cease.’ Therefore, a stay, operating only upon future proceedings, cannot affect the legal status of the party as already fixed, by law, and with or without a stay, his further acts under the certificate would be in violation of the penal provisions of the statute.”

The application for a stay is, therefore, denied.

Application denied.

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Bluebook (online)

2 Liquor Tax Rep. 365, 32 Misc. 303, 66 N.Y.S. 732, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-washburn-nycountyct-1900.

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