Lyman v. Plymouth Social Club & American Surety Co.

New York Supreme Court

Lyman v. Plymouth Social Club & American Surety Co.

1 Liquor Tax Rep. 365

DecidedJune 15, 1898

StatusPublished

This text of 1 Liquor Tax Rep. 365 (Lyman v. Plymouth Social Club & American Surety Co.) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lyman v. Plymouth Social Club & American Surety Co., 1 Liquor Tax Rep. 365 (N.Y. Super. Ct. 1898).

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Opinion

Bischoff, Jr., J.:

Actions by Commissioner of Excise against holders of liquor tax certificates, and their sureties, to recover amount of penalty stated in bond for violation of the Liquor Tax Law. Motions that complaints be made more definite and certain and to strike out certain allegations, also that causes of action be separately stated. The allegations as to the maintenance of a disorderly place in each instance, appear to be proper in form, and if the defendants are entitled to further particularity as to the exact days, during the period specified, upon which the premises were maintained in a disorderly manner, relief should be had by motion for a bill of particulars. So far as it is alleged, how ever, that such maintenance of the premises was “in violation of [366]*366the Liquor Tax Law and a breach of the conditions of the bonds,” the averments are irrevelaiit as the mere statement of a conclusion of law and should be stricken out. (Village of Cortland v. Howard, 1 App. Div. R., 131.) Where the complaints proceed upon sales of liquors the facts showing that the persons to whom the liquor was sold were persons to whom the defendant principal was not allowed to make such sales should be stated, and in these instances the statement that the sales were “in violation of” the particular restrictions should be stricken out. (Case last cited.) I can not hold that the several alleged violations of the Liquor Law, as set forth in the complaint, constitute separate causes of action. But one cause of action is alleged—the breach of the condition of the bond—and but one amount is recoverable by the plaintiff in these actions for one or for all of these violations, and the presence of several cumulative grounds for the breach of the condition of the bond does not render the complaint severable into more than one cause of action; and so it was ruled in The State v. Davis (35 Mo., 406), which was an action to recover upon a sheriff’s bond, the complaint alleging several breaches thereof and in Fiske v. Tank (12 Wis., 276), where the plaintiff sought to recover for breach of a contract, alleging that the contract was broken in two respects and demanding damages for each breach.

Motion granted, so far as indicated, without costs.

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Bischoff, Jr., J.:

Actions by Commissioner of Excise against holders of liquor tax certificates, and their sureties, to recover amount of penalty stated in bond for violation of the Liquor Tax Law. Motions that complaints be made more definite and certain and to strike out certain allegations, also that causes of action be separately stated. The allegations as to the maintenance of a disorderly place in each instance, appear to be proper in form, and if the defendants are entitled to further particularity as to the exact days, during the period specified, upon which the premises were maintained in a disorderly manner, relief should be had by motion for a bill of particulars. So far as it is alleged, how ever, that such maintenance of the premises was “in violation of [366]*366the Liquor Tax Law and a breach of the conditions of the bonds,” the averments are irrevelaiit as the mere statement of a conclusion of law and should be stricken out. (Village of Cortland v. Howard, 1 App. Div. R., 131.) Where the complaints proceed upon sales of liquors the facts showing that the persons to whom the liquor was sold were persons to whom the defendant principal was not allowed to make such sales should be stated, and in these instances the statement that the sales were “in violation of” the particular restrictions should be stricken out. (Case last cited.) I can not hold that the several alleged violations of the Liquor Law, as set forth in the complaint, constitute separate causes of action. But one cause of action is alleged—the breach of the condition of the bond—and but one amount is recoverable by the plaintiff in these actions for one or for all of these violations, and the presence of several cumulative grounds for the breach of the condition of the bond does not render the complaint severable into more than one cause of action; and so it was ruled in The State v. Davis (35 Mo., 406), which was an action to recover upon a sheriff’s bond, the complaint alleging several breaches thereof and in Fiske v. Tank (12 Wis., 276), where the plaintiff sought to recover for breach of a contract, alleging that the contract was broken in two respects and demanding damages for each breach.

Motion granted, so far as indicated, without costs.

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1 Liquor Tax Rep. 365, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lyman-v-plymouth-social-club-american-surety-co-nysupct-1898.

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