People ex rel. Smaw v. McGowan

44 A.D. 30, 2 Liquor Tax Rep. 179, 60 N.Y.S. 407

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 15, 1899
• Status: Published

Opinion

Rumsey, J. :

The statute (§ 29 of the Liquor Tax Law

*) requires that a verified petition should be presented to the court as the basis of the proceeding here sought to be taken. The petition which was served contained a verification which it is claimed was defective, and the defendants gave notice that they elected to consider the petition a nullity, because the verification was defective- and insufficient.

The Liquor Tax Law contains no direction as to what is to be stated in the verification, and the rule in that regard, therefore, is that prescribed by the Code of Civil Procedure. Section 526 of the Code prescribes that the affidavit of verification must be to the effect that the proceeding “ is true to the knowledge of the deponent, except as to the matters therein stated to be alleged upon information and belief, and that as to those matters he believes it to be true.” The verification presented was in that precise form. It was made by the petitioner himself, who was a party to the proceeding.

But it is claimed that the petition is defective, because it does not show that the deponent had any good ground for his information and belief. To this there are two answers. In the first place, as the verification was made by the party himself, the statute did not. require him to show any grounds for' his information and belief, and whatever he stated on the subject was pure surplusage. In the second place, it cannot be ■ said that the statements did not show good grounds for the information and belief of the facts alleged in the petition, so that even if the statement of the sources of his information was required, that made in the verification is quite sufficient.

But although the petition was dismissed on that ground,, yet if there is any other fatal defect which would warrant the action of the court, the order must be affirmed. That there is such a defect is quite clear. By section 29 of the Liquor Tax Law, as amended in 1897,† the authority to present a petition asking for the revocation of a tax certificate for a violation of the law, is given to certain officials, and to a taxpayer of the county where the certificate is issued. Ho others can present it. The petition contains no aliegation that the petitioner is either one of the officials named in the statute, or a taxpayer of the county of Hew York, He had, therefore, no authority to present the petition asking for the revocation of this tax certificate. For 'this reason the action of the learned justice was correct and must be sustained, and the order affirmed, with ten dollars costs and disbursements,

Van Brunt, P. J.,' Patterson, O’Brien and Ingraham, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.

Laws of 1896, chap. 112, as amd. by Laws of 1897, chap. 312.—[Rep.

Chap. 312.—[Rep.