Marquardt v. Clement

New York Supreme Court

Marquardt v. Clement

68 Misc. 96, 124 N.Y.S. 934

DecidedJune 15, 1910

StatusPublished

This text of 68 Misc. 96 (Marquardt v. Clement) 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

Marquardt v. Clement, 68 Misc. 96, 124 N.Y.S. 934 (N.Y. Super. Ct. 1910).

Pincite

Opinion

Kelly, J.

The conviction of the plaintiff for' violating the Liquor Tax Law did not of itself work a forfeiture of the new certificate under which he was trafficking on the date of the judgment of conviction under section 36, subdivision 2, of the law.

That section provides that, upon conviction, the person convicted shall be guilty of a misdemeanor “ and shall forfeit the liquor tax certificate and be deprived of all rights and privileges thereunder." At the time the plaintiff violated the law, he was not the holder of a certificate; he was a bartender employed by his father. Forfeiture ipso facto of the certificate referred to in section 36, subdivision 2, refers to the certificate under which the traffic is conducted at the time of the violation.

The plaintiff started in- business for himself at the sanie store some months after the violation which occurred while [97]*97he was a bartender. He procured a new certificate issued in his own name. The violation occurred April 11, 1909, while he was working for. his father, who held the old certificate. The new certificate was issued to plaintiff individually on September 15, 1909, authorizing him to traffic in liquors during the excise year begining October 1, 1909. "While conducting traffic under this new certificate he was convicted, on December 2, 1909, of the offense committed in April. The defendant claims that this conviction forfeits the new certificate ipso facto. I do not interpret the statute in that way. It is provided in section 21 of the law, subdivision d, that no person who has been convicted of a violation of the act shall traffic in liquors until three years from the date of such conviction. Therefore, after conviction the plaintiff was not entitled to traffic in liquors, but the certificate could only be revoked on notice in the manner pointed out by section 21 of the law, subdivision 2.

Judgment for plaintiff; but the injunction shall not be construed as preventing proper and legal proceedings to obtain a revocation of said license.

Judgment accordingly.

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Kelly, J.

The conviction of the plaintiff for' violating the Liquor Tax Law did not of itself work a forfeiture of the new certificate under which he was trafficking on the date of the judgment of conviction under section 36, subdivision 2, of the law.

That section provides that, upon conviction, the person convicted shall be guilty of a misdemeanor “ and shall forfeit the liquor tax certificate and be deprived of all rights and privileges thereunder." At the time the plaintiff violated the law, he was not the holder of a certificate; he was a bartender employed by his father. Forfeiture ipso facto of the certificate referred to in section 36, subdivision 2, refers to the certificate under which the traffic is conducted at the time of the violation.

The plaintiff started in- business for himself at the sanie store some months after the violation which occurred while [97]*97he was a bartender. He procured a new certificate issued in his own name. The violation occurred April 11, 1909, while he was working for. his father, who held the old certificate. The new certificate was issued to plaintiff individually on September 15, 1909, authorizing him to traffic in liquors during the excise year begining October 1, 1909. "While conducting traffic under this new certificate he was convicted, on December 2, 1909, of the offense committed in April. The defendant claims that this conviction forfeits the new certificate ipso facto. I do not interpret the statute in that way. It is provided in section 21 of the law, subdivision d, that no person who has been convicted of a violation of the act shall traffic in liquors until three years from the date of such conviction. Therefore, after conviction the plaintiff was not entitled to traffic in liquors, but the certificate could only be revoked on notice in the manner pointed out by section 21 of the law, subdivision 2.

Judgment for plaintiff; but the injunction shall not be construed as preventing proper and legal proceedings to obtain a revocation of said license.

Judgment accordingly.

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Bluebook (online)

68 Misc. 96, 124 N.Y.S. 934, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marquardt-v-clement-nysupct-1910.