Collins, J.:
Both defendants were charged separately with the crime of violating the Liquor Tax Law, in that on the 5th day of May, 1912, at No. 8 Doyer street, in the county of New York, they engaged in the traffic of liquors without having paid the excise tax, as required by subdivision 1 of section 8 of the Liquor Tax Law, or, in other words, that they engaged in the sale of liquors without a license. On trial a stipulation was entered into as to both cases to the effect that they were to be considered as if tried together. A motion was made at the close to acquit defendants, on which decision was reserved.
Subdivision 1 of section 8 of the Liquor Tax Law, in so far as it applies to the case at bar, provides as follows:
[529]*529“ Upon, the business of trafficking in liquors to be drank upon the premises where sold, or which are so drank, whether in a hotel, restaurant, saloon, store, shop, booth of other place, or in an outbuilding, yard or garden appertaining thereto or connected therewith, there is assessed an excise tax to be paid by every person engaged in such traffic, and for each such place where such traffic is carried on by such person if the same be in a city or borough having by the last State census a population of fifteen hundred thousand or more, the sum of twelve hundred dollars.”
¡Subdivision 8 of the same Section provides in part:
“ If there be more than one bar, room or place on the premises, car, steamboat, vessel, boat or barge, at which the traffic in liquors is carried on under any subdivision of this section, a like additional tax is assessed for each such additional bar, room or place.”
A license had been issued to one Peter J. Breen for a saloon at Eo. 8 Doyer street, which license was in operation at the time of the violation alleged. In the application applying for such license the specific location of the bar on the premises or place where the liquors were to be sold was stated to be on the ground floor, front room thereof.
Two officers entered the premises in question and proceeded to a floor immediately over the saloon, where there were two rooms in which the defendants were. The officers sat at a table and ordered beer on two occasions, once of the defendant Fappiano and once of the defendant Dore. Each defendant left the room and returned shortly with the beer. The defense was that the liquors were served from the barroom below and that the room or rooms in question were used as incidents to such bar and were a part of the premises. Entrance to the bar from the floor where the drinks were served was by a stairway leading from a hallway immediately adjoining the rooms to a hallway in the rear of the barroom below, thence through a door from such [530]*530hall. The officers stated they did not know where the drink was. obtained; that npon giving the order in each instance the defendant left the room and returned shortly thereafter with the-beer.
It was shown on behalf of the defendants that both were-waiters employed by the proprietor of the saloon and had obtained the liquor furnished from the saloon. The question,, therefore, is whether or not the rooms in which the liquor was served may ibe considered a part of the licensed premises within, the provisions of the Liquor Tax Law. If a part of the premises it follows that the defendants should be acquitted.
The provisions of the Liquor Tax Law above referred to have-been construed in ;a case which seems to be controlling of the-one at bar: Matter of Lyman In re Malcom Brewing Company, 40 App. Div. 46. A license had been granted to the respondent for the sale of liquor in Washington Park, in the borough of' Brooklyn. In the application for the license the location of the bar was stated to be at one corner of that park, while liquors-, were served throughout the enclosure by virtue of said license, and the question was, whether or not the sales were legal under-the license. .Other questions were considered in the case, not' important here. The court said, construing 'the provision of the Liquor Tax Law relating to more than one bar or room or place on the premises:
“ The terms of this provision are very broad and sweeping; still they must be considered reasonably. By section thirty-one-of the act, as amended, the keeper of a hotel may sell liquor to his guests with their meals or in their rooms, except -between the-hours of one o’clock -and five o’clock in the morning, but not in-the barroom or other similar room of such hotel. It will hardly be claimed that a certificate must be taken out for the dining-room, or the rooms of the guests who are there served with liquors; nor can it be argued that the provision of law quoted" above gives hotels a special exemption from paying more than ax [531]*531single license fee. The only object of the provision is to take hotels out of the prohibitory clauses of the section which forbid the selling of liquor on Sundays and days of general or special sleetion and the like. If it is to be construed as an affirmative grant of permission for a hotelkeeper to sell liquor to his guests, then it follows that he can at no time sell liquor to a guest in the barroom, though that place is open to the rest of the world for resort. There is also to be considered the case of restaurants (not hotels), which, when of any pretension-or character, have their dining rooms or eating rooms separate from the barrooms. It is certainly customary to serve wines or liquors in the dining room with meals. There are many music or other gardens where liquor is sold. It would.be unreasonable to hold that in no such place could a patron be served with beer, wine or liquor except in the barroom, unless additional certificates are taken out, for what—for each table? We concede that, under the law, if a second barroom, or place distinctively for the sale of liquor, is maintained, an additional tax certificate must be taken out to cover it. But where any other bar or place of the character is maintained, we think refreshments may be served by waiters to persons not in the barroom without a violation of the law. Such practice seems to be contemplated by the statute itself. By subdivision 1, section 8, it is directed that a tax shall be '-assessed upon the business of trafficking in liquors being drunk upon the premises where sold, or which are so drunk, whether in a hotel, restaurant, saloon, or in an outbuilding, yard or garden appertaining thereto or connected therewith, thus recognizing that liquor may be sold, or at least served, in connecting gardens. * * * The sales so made by the waiter should fairly be considered as mere incidents to the main business carried on in the barroom, and not as constituting the maintenance of a separate and independent place for the sale of liquor.”
[532]*532There are in the city of Hew York numerous places where sitting rooms are maintained in connection with a saloon, and it would be folly to hold that liquors served therein, supplied at the bar to waiters, would cause the proprietor or the waiter so serving to be guilty of the offense of selling without a license.
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Collins, J.:
Both defendants were charged separately with the crime of violating the Liquor Tax Law, in that on the 5th day of May, 1912, at No. 8 Doyer street, in the county of New York, they engaged in the traffic of liquors without having paid the excise tax, as required by subdivision 1 of section 8 of the Liquor Tax Law, or, in other words, that they engaged in the sale of liquors without a license. On trial a stipulation was entered into as to both cases to the effect that they were to be considered as if tried together. A motion was made at the close to acquit defendants, on which decision was reserved.
Subdivision 1 of section 8 of the Liquor Tax Law, in so far as it applies to the case at bar, provides as follows:
[529]*529“ Upon, the business of trafficking in liquors to be drank upon the premises where sold, or which are so drank, whether in a hotel, restaurant, saloon, store, shop, booth of other place, or in an outbuilding, yard or garden appertaining thereto or connected therewith, there is assessed an excise tax to be paid by every person engaged in such traffic, and for each such place where such traffic is carried on by such person if the same be in a city or borough having by the last State census a population of fifteen hundred thousand or more, the sum of twelve hundred dollars.”
¡Subdivision 8 of the same Section provides in part:
“ If there be more than one bar, room or place on the premises, car, steamboat, vessel, boat or barge, at which the traffic in liquors is carried on under any subdivision of this section, a like additional tax is assessed for each such additional bar, room or place.”
A license had been issued to one Peter J. Breen for a saloon at Eo. 8 Doyer street, which license was in operation at the time of the violation alleged. In the application applying for such license the specific location of the bar on the premises or place where the liquors were to be sold was stated to be on the ground floor, front room thereof.
Two officers entered the premises in question and proceeded to a floor immediately over the saloon, where there were two rooms in which the defendants were. The officers sat at a table and ordered beer on two occasions, once of the defendant Fappiano and once of the defendant Dore. Each defendant left the room and returned shortly with the beer. The defense was that the liquors were served from the barroom below and that the room or rooms in question were used as incidents to such bar and were a part of the premises. Entrance to the bar from the floor where the drinks were served was by a stairway leading from a hallway immediately adjoining the rooms to a hallway in the rear of the barroom below, thence through a door from such [530]*530hall. The officers stated they did not know where the drink was. obtained; that npon giving the order in each instance the defendant left the room and returned shortly thereafter with the-beer.
It was shown on behalf of the defendants that both were-waiters employed by the proprietor of the saloon and had obtained the liquor furnished from the saloon. The question,, therefore, is whether or not the rooms in which the liquor was served may ibe considered a part of the licensed premises within, the provisions of the Liquor Tax Law. If a part of the premises it follows that the defendants should be acquitted.
The provisions of the Liquor Tax Law above referred to have-been construed in ;a case which seems to be controlling of the-one at bar: Matter of Lyman In re Malcom Brewing Company, 40 App. Div. 46. A license had been granted to the respondent for the sale of liquor in Washington Park, in the borough of' Brooklyn. In the application for the license the location of the bar was stated to be at one corner of that park, while liquors-, were served throughout the enclosure by virtue of said license, and the question was, whether or not the sales were legal under-the license. .Other questions were considered in the case, not' important here. The court said, construing 'the provision of the Liquor Tax Law relating to more than one bar or room or place on the premises:
“ The terms of this provision are very broad and sweeping; still they must be considered reasonably. By section thirty-one-of the act, as amended, the keeper of a hotel may sell liquor to his guests with their meals or in their rooms, except -between the-hours of one o’clock -and five o’clock in the morning, but not in-the barroom or other similar room of such hotel. It will hardly be claimed that a certificate must be taken out for the dining-room, or the rooms of the guests who are there served with liquors; nor can it be argued that the provision of law quoted" above gives hotels a special exemption from paying more than ax [531]*531single license fee. The only object of the provision is to take hotels out of the prohibitory clauses of the section which forbid the selling of liquor on Sundays and days of general or special sleetion and the like. If it is to be construed as an affirmative grant of permission for a hotelkeeper to sell liquor to his guests, then it follows that he can at no time sell liquor to a guest in the barroom, though that place is open to the rest of the world for resort. There is also to be considered the case of restaurants (not hotels), which, when of any pretension-or character, have their dining rooms or eating rooms separate from the barrooms. It is certainly customary to serve wines or liquors in the dining room with meals. There are many music or other gardens where liquor is sold. It would.be unreasonable to hold that in no such place could a patron be served with beer, wine or liquor except in the barroom, unless additional certificates are taken out, for what—for each table? We concede that, under the law, if a second barroom, or place distinctively for the sale of liquor, is maintained, an additional tax certificate must be taken out to cover it. But where any other bar or place of the character is maintained, we think refreshments may be served by waiters to persons not in the barroom without a violation of the law. Such practice seems to be contemplated by the statute itself. By subdivision 1, section 8, it is directed that a tax shall be '-assessed upon the business of trafficking in liquors being drunk upon the premises where sold, or which are so drunk, whether in a hotel, restaurant, saloon, or in an outbuilding, yard or garden appertaining thereto or connected therewith, thus recognizing that liquor may be sold, or at least served, in connecting gardens. * * * The sales so made by the waiter should fairly be considered as mere incidents to the main business carried on in the barroom, and not as constituting the maintenance of a separate and independent place for the sale of liquor.”
[532]*532There are in the city of Hew York numerous places where sitting rooms are maintained in connection with a saloon, and it would be folly to hold that liquors served therein, supplied at the bar to waiters, would cause the proprietor or the waiter so serving to be guilty of the offense of selling without a license.
There was some evidence in the case that a chartered club was in possession of the rooms where the liquor was served to the officers, but it was shown that the club in question had no charge or control of the rooms; that its members met there only once or twice a month at the courtesy or consent of the proprietor of the saloon, and in a way not calculated to change the general character of the place or rooms as sitting rooms for the customers of the saloon. It was contended, however, that because there was not a direct connection with the saloon by an opening in the floor leading to the bar below, or by a stairway leading directly into the barroom that, therefore, 'the rooms could not be considered as a part of the licensed premises. The manner of obtaining entrance to the saloon from the rooms referred to was by a hall stairway, as above stated. If this would be sufficient to establish that the rooms were not connected with the premises, it would follow, in a large number of places in the city of Hew York where bowling alleys are maintained in the basement with a licensed saloon on the first floor, to which alleys access is obtained from a hallway adjoining the saloon to a hallway adjoining the bowling alleys, and in which alleys drinks are served to the patrons, from the saloon, that they are all operated in violation of the law unless a separate liquor tax certificate is obtained. This would seem to be straining the application of the Liquor Tax Law to an extent not intended by the Legislature. We are unwilling to agree with the hair-splitting distinction that if the proprietor of the saloon in question had, for his own convenience, caused a hole to be cut in the floor of the room above his saloon, and used an elevator or dumb-waiter to hoist the liquors up, that he would not have been guilty of a violation [533]*533of the Liquor Tax Law, and because he did. not avail himself of such a convenience that guilt is established.
The Legislature has provided drastic punishment for selling liquors without a license, and has fixed the minimum penalty of two hundred dollars fine and thirty days in prison, together with a minimum of forty days additional imprisonment in the event of the fine not being paid. It is clear that the intention was to inflict such punishment upon persons who sold liquor without any license whatever. It was not intended to be applied to cases where customers were supplied in rooms adjoining the saloon through the medium of waiters.
The case cited above was affirmed by the Court of Appeals: Matter of Lyman, 160 N. Y., page 96. On page 101 the court says:
“ It fairly includes the right of the holder to distribute liquors in the glass by waiters to the patrons of the public place where the bar is located. * * * In such cases it would seem to be reasonable to assume that a person authorized to sell liquor to the public frequenting the place should have the right to reach the public from his bar on the grounds through waiters employed to distribute to the patrons of the place what he was authorized to sell and deliver. The license covers not only the right to sell over a bar, but whatever else is fairly included in or-incidental to the business authorized.”
In the Matter of Lyman (Texter Certificate, 59 App. Div. 217), the court, in a case where several bars were maintained at one time in a public park, and it was subsequently sought to do all the business of the place on one certificate, in determining against such contention, reiterating its ruling in the Matter of Lyman above cited, says, on page 219:
“ In that case we simply decided that beer, wine, or liquor might be served outside of the barroom where hut a single barroom or place of that character was maintained, inasmuch as such a traffic seemed to he contemplated by the statute itself.”
[534]*534It seems to be the law of this ¡State, therefore, that where liquor is served in rooms, other than the barrooms, and it can be shown that such rooms are connected and incidental to the barroom, and that no separate bar is maintained therein, that such an act does not constitute the offense of selling liquors without a license. In this case there was no separate bar maintained in the rooms in question, and the evidence affirmatively showed that the liquors- were supplied from the bar through the medium of waiters, and that the said rooms were connected with and incidental to the said licensed, premises. It would follow, therefore, that the offense of selling liquors without a license is not established, and both the defendants, accordingly, should be acquitted.
Zelleb and O’Keefe, II., concur.