Opinion
June 8, 1906.
William L. Thornton [ William E. Schenck with him on the brief], for the appellant.
Graham Witschief, for the respondent.
The petitioner, who had been engaged in the traffic in liquor at No. 274 Washington street, Newburgh, for a number of years, filed his application, statement and bond for the purpose of a continuance. By mistake the premises were described in the application, statement and bond as No. 247 Washington street, and in due course a certificate was issued to him for traffic at a place thus numbered. Thereafter an inspector of excise discovered the mistake. Application was made to the department for a correction, but this was refused, with the requirement that the petitioner file a new application and bond and a petition for a transfer under section 26 of the Liquor Tax Law (Laws of 1896, chap. 112). As this required the payment of certain additional fees, the petitioner presented a petition to the Special Term for an order for the authorities and the surety to show cause why an order should not be granted to amend the certificate. The surety appeared and did not oppose. The Commissioner of Excise opposed, but did not present any affidavits. The Special Term ordered that upon the filing of a new application and bond with a correct designation by number of the premises, the outstanding certificate be amended nunc pro tunc. There can be no question but that the misdescription was a mistake pure and simple. Under the circumstances, I cannot see how any one would be harmed if the Commissioner, upon consent of the surety and the surrender of the outstanding certificate, had issued one, corrected as to the number of the premises. But that is his concern, and I have no intention to criticise his attitude. The mistake is mutual. Without consent of the parties, in any event the court could not in this special proceeding correct the mutual mistake as if it had held a trial in equity. I am constrained, therefore, to advise the reversal of the order, but without costs, and a denial of the motion, without costs.
WOODWARD, GAYNOR and RICH, JJ., concurred.
Order reversed, without costs, and motion denied, without costs.