Opinion
December 30, 1905.
D. Cady Herrick, for the plaintiff.
Terence Farley, for the defendant Hopper.
Julius M. Mayer, Attorney-General, for the respondents.
This action was brought to enjoin the defendants from interfering with the use by the plaintiff of the premises described in the complaint as authorized by chapter 697 of the Laws of 1905; and to enjoin and restrain the defendant Hopper, as superintendent of buildings, from removing or causing to be removed any partitions forming bedrooms in the hotel described. Upon the motion coming on, the court denied the motion to enjoin the defendant Healy, Special Deputy Commissioner of Excise, from taking possession under chapter 697 of the Laws of 1905, and from depriving the plaintiff of the liquor tax certificate, but enjoined the defendant as superintendent of buildings from removing or causing to be removed the partitions forming bedrooms in the said building No. 2362 Third avenue.
We think this order should be affirmed as to the Special Deputy Commissioner of Excise on the grounds stated by the learned court at Special Term. ( 48 Misc. Rep. 177.) There was nothing that the court could enjoin so far as the defendant Healy was concerned. He had, in pursuance to the command of the Legislature, revoked the license, and he did not threaten to do nor was he directed to do anything further. If the provisions of this act are void and in violation of the Constitution, then the act of Healy in revoking the license was a void act and did not affect the plaintiff. If the act of the Legislature is valid, then the act of Healy was performed under a valid mandate of the Legislature, with which the court cannot interfere. There is nothing in the nature of things that Healy threatened to do that could interfere with the plaintiff's rights or require the protection of a court of equity.
We also think that the order enjoining the defendant Hopper from interfering with the defendant's property was correct. Whatever may be said of the power of the State to revoke a liquor tax certificate, it certainly had no power to authorize an officer to destroy the plaintiff's property without the judgment or order of a competent judicial authority. Such an act would be in direct violation of both the Federal and State Constitutions. (U.S. Const. 14th amendt. § 1; State Const. art. 1, § 6.)
The order appealed from should be affirmed, without costs.
O'BRIEN, P.J., PATTERSON, LAUGHLIN and CLARKE, JJ., concurred.
Order affirmed, without costs.