Teschmacher v. Clement

135 A.D. 538, 120 N.Y.S. 537, 1909 N.Y. App. Div. LEXIS 4016

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 30, 1909
• Status: Published

Opinions

Scott, J.:

This is an appeal from an order denying a motion for an injunction restraining the sheriff from taking possession of and removing the liquor tax certificate issued to the plaintiff. Subdivision 3 of -section 36 of the Liquor Tax Law of 1909 (Consol. Laws,, chap. 34; Laws of 1909, chap. 39; being- a re-enactment of the former act)

* provides as follows : “3. If there shall be two convictions of clerks, agents, employees or servants of a holder of a liquor tax certificate, for a violation of any provision of this chapter, the liquor tax certificate of the principal shall be forfeited, and the said principal shall be deprived of all rights and privileges thereunder, and of any right to any rebate of any portion of the tax paid thereon.”

- Subdivision 8"of the same section makes it the duty of the holder of a forfeited certificate to surrender the same, and provides that in case of refusal a demand, as therein specified, shall be delivered to the sheriff for service, and he is thereupon required to make service of the demand, and take possession of the certificate. It is this act that it is sought to restrain.

The plaintiff held a liquor tax certificate issued for the term from May 1, 1908, to September 30, 1908. During that time and on or about September 27, 1908, one of his employees was arrested upon a charge of having violated the Liquor Tax Law. Plaintiff obtained a certificate for the period from October 1, 1908, to September 30, 1909, and during this period, and-on or about November 29, 1908, another employee was arrested charged with a violation • of' the Liquor Tax Law. On June 25, 1909, Andre, the employee first arrested, was tried and convicted of the. offense for which he had been arrested on September 27, 1908. . Three days later, on June 28, 1909, Hoffman, the employee secondly arrested, was tried and convicted of the offense for which he had been arrested on November 29, 1908. Thus there is presented the case of two convictions, both within the lifetime of one certificate,- for two offenses, one committed during the lifetime of one certificate and the other committed during the lifetime of another certificate.

The appellant contends that the statute should be read as if it provided that two violations of the Liquor Tax Law by employees of the holder, if committed during the lifetime of the same certificate shall work a forfeiture. The only argument in favor of such a reading is that to construe- the act as it is- written would in this particular case work a hardship. That is not a sufficient reason -for disregarding the plain language of the statute. (Matter of Hering, 133 App. Div. 293.) What the statute plainly says is that' two convictions shall work a forfeiture. The language is too plain to require construction, and even if we are to assume that thése two. convictions must be had during the lifetime of a single certificate, that necessity is satisfied by the facts of the present case.

The order is affirmed, with ten dollars costs and disbursements.

Ingraham, J., concurred ; Laughlin and Houghton. JJ., dissented.

See Consol. Laws, chap. 34 (Laws of 1909, chap. 39), § 86, subd. 3; Gen. Laws, chap. 39 (Laws of 1896, chap. 113), § 34, subd. 3,' as amd. by Laws of 1897, chap. 313, and Laws of 1908, chap 350.— [Rep.