Opinion
October, 1909.
Page Booth, for applicants.
H.H. Kellogg, for State Commissioner of Excise.
The applicant, who claims to be the lessee of part of the premises affected, asks leave to intervene and to serve an answer in a proceeding brought by the State Commissioner of Excise to cancel a liquor tax certificate issued to one Richter, which proceeding has been duly determined and an order entered revoking said certificate. Prior to the entry of said order of revocation this applicant made a similar motion to intervene before Justice Bischoff, distinctly raising the point of which he now seeks to avail himself as to the constitutionality of section 17, subdivision 8, of the Liquor Tax Law, which provides that, where a certificate is revoked on the ground that the premises had been suffered by the licensee to become disorderly, no new certificate shall be issued for said premises to any person for one year. The application was denied, and an appeal taken, which was dismissed for want of prosecution. Subsequently, in a similar proceeding (Matter of Jennings, 130 A.D. 647), it was held by the Appellate Division that a lessee of a part of the premises, who was not the holder of a certificate, should have been permitted to intervene, on the ground that the determination of the issue affected a property right of the applicant, though the certificate itself was not property; and this applicant now renews his application in view of such subsequent decision. Even if it be assumed that the right of an owner or lessee of property to apply for something which the State in the due exercise of its police power may refuse is a property right, the only construction that can be placed upon the decision in the Matter of Jennings is that the lessee should be allowed to intervene and defend on the merits as to the alleged violation; for, in People v. McKee, 59 Misc. 369; affd., 126 A.D. 954, the constitutionality of this provision of the Liquor Tax Law has been finally determined by the appellate court. The right of the applicant to intervene on the merits having been denied, and he having acquiesced in such decision by abandoning his appeal, it is now too late, after the determination of the matter and the entry of the order of revocation, to renew the application.
Motion denied, without costs.