People v. Pettit

128 A.D. 870, 113 N.Y.S. 243, 1908 N.Y. App. Div. LEXIS 605

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 27, 1908
• Status: Published

Opinion

Woodward, J.:

This special proceeding was instituted to cancel a liquor tax certificate under the provisions of chapter 272 of the Laws of 1906 dg. Liquor Tax Law [Laws of 1896, chap. 112], § 28, subd. 2)* upon the ground that “ material statements in the application of the holder of such certificate were false.” Section 17, subdivision 5, of the Liquor Tax Law (as amd. by Laws of 1907, chap. 345, and Laws of 1908, chap. 144)

* requires the applicant to state “ how many buildings occupied exclusively as dwellings there are, the nearest entrance to which is within two hundred feet measured in a straight line, of the nearest entrance to the premises where the trafiic in liquors is intended to be carried on,” and subdivision 8 as thus amended* requires that where the nearest entrance of any such proposed licensed place is within two hundred feet, in a straight line, of the nearest entrance to a building or buildings occupied exclu-, sively for a dwelling, there shall also be filed simultaneously with such statement the written consents of the owners of at least two-thirds of such buildings, etc. There was evidence in the cáse sufficient to establish the fact that at the time this application was made the nearest entrance of the dwelling house at 446 Grand avenue was within less than two hundred feet from the nearest entrance of the premises No. 1011 Fulton street, where the certificate was designed to operate, but it is urged on, the part of the defendant that the entrance from which this measurement was made was subsequently closed, and that a new entrance was made, which entrance was more than two hundred feet away, and that this was sufficient compliance with the statute to warrant the exclusion of this dwelling from the statement, and thus reduce the number of consents necessary. It is conceded that this subsequent change was made for the purpose of excluding this dwelling house from the calculation, and the case does not'show that the owner of the dwelling house may not have likewise changed his entrance. But whether or not this is true, is beside the question. The statute requires a true statement of the material facts as they exist at the time of the making of the application, and while this court would not permit the cancellation of a certificate for some incidental matter which was in good faith in process of correction at the time of making the application, where the statute requires a statement of the number óf dwelling houses within a certain distance to be stated, and written consents to be filed of the owners of at least two-thirds of such dwelling houses, it is not a compliance with the statute to intend to make changes in the entrances of the licensed place to exclude a dwelling house which is in fact at the time within the territory■ contemplated by the statute.' The law requires a true statement of the material facts as they exist at the ' time; not what they may be at some subsequent time, and-it places the. burden of making this statement upon the applicant,' who is bound to know the truth. The applicant in this case; undoubtedly did know the truth, for it appears that lie directed the measurements to be made from the place where he intended to make a new entrance, in • abandoning the old, and he took his certificate with this defect in its title, afid lie now has no reason to complain at the result of the special proceeding, This is the doctrine laid down in Matter of Barnard (48 App. Div. 423) and is not inconsistent with the view of this court expressed in Matter of Purdy (40 id. 133).

There are other matters involved in this case which it does not seem néee'ssary to discuss or determine, in view of the conclusion which"we have reached upon the exclusion of the dwelling house above considered from the statement made by the defendant in his application.

The order appealed from should be affirmed, With costs’.

Jenks, Gaynor, Rich and Miller, JJ., concurred.

Order affirmed,, with ten dollars costs and disbursements.

Amd. by Laws of 1908, chap. 350, which took effect May 19,1908 — [Rep.