Opinion
April, 1905.
James Dempsey, for the appellant.
D.S. Herrick, for the respondent.
This is a proceeding under subdivision 2 of section 28 of the Liquor Tax Law (Laws of 1896, chap. 112, as amd. by Laws of 1903, chap. 486) for the cancellation of a liquor tax certificate on account of material statements in the application for such certificate alleged to be false.
The evidence warrants the finding that at the time of the issuance of the certificate Forbush was the proprietor of a hotel in Peekskill known as the Hotel Raleigh, situated on the corner of South and Depew streets, the nearest entrance to which was within 200 feet of the nearest entrance to a church situated on South street. The applicant applied for and received a certificate, under subdivision 1 of section 11 of the Liquor Tax Law (as amd. by Laws of 1903, chap. 115), to traffic in liquors in a room situated in the basement of the hotel building on Depew street having a single entrance from Depew street and none whatever from any portion of the hotel building. This entrance was more than 200 feet from the church. The certificate obtained did not grant a hotel license or permit the carrying on of the traffic in liquors at any place except in the single room described. A sale of liquors, therefore, in any other part of the Hotel Raleigh building was not authorized by this certificate. There was a poolroom in the basement of the building adjoining the room described in the application, having access to other parts of the hotel building, but without any to the room in question, except that there was a window in the partition between the two rooms, the bottom of which was eight feet from the floor on the side of the room used for the saloon and five feet on the side used for the poolroom, which it is claimed was kept fastened by a bolt and used only for the purpose of admitting light. The application stated that there were ten buildings occupied exclusively as dwellings within 200 feet of the nearest entrance to the premises where the business was intended to be carried on. Three of these buildings were owned by five persons, devisees of Robert MacKellar, deceased, until conveyed as hereinafter stated. Attached to the petition was the consent of William H.H. MacKellar, as executor of Robert MacKellar, deceased. It is necessary to count the three buildings in respect to which said MacKellar as executor consented in order to obtain the necessary two-thirds required by the statute. Said MacKellar was one of the devisees of his testator, and was executor with a naked power of sale. He testified that he had exclusive management of the property, rented the premises and paid the taxes, and that he did everything that a man could do if the property was his own personally. The consents were signed on the 25th day of February, 1903, and on the 2d day of July, 1903, before the application for the liquor tax certificate was filed with the county treasurer, said MacKellar as executor conveyed said three parcels to one Dora Solkin.
It is claimed by the respondent that the application for the certificate contained three material statements which were false: First, that the place where the applicant intended to traffic in liquors was not on the same street or avenue and within 200 feet of a building occupied exclusively as a church or schoolhouse; second, that no other business was to be carried on by the applicant or another in any room adjoining and not entirely separated from the room in which the traffic in liquors was to be carried on by a solid partition at least three inches thick extending from floor to ceiling without any opening therein, and, third, that the applicant had attached a consent in writing, etc., executed by the owner or owners, or by the duly authorized agent or agents of such owner or owners of at least two-thirds of the total number of buildings occupied exclusively for dwellings, etc.
As to the first proposition it may be urged with some force that the applicant having applied for and obtained a certificate which only entitled him to traffic in liquors in a single room of the building referred to, having no means of access to any part of said building, with only one entrance, and that from the street more than 200 feet from the entrance to the church referred to, the first statement challenged was not false.
As to the second statement it may be urged that it was required because of section 22 of the Liquor Tax Law (as amd. by Laws of 1897, chap. 312), which prohibits the granting of a liquor tax certificate under subdivision 1 of section 11 of said statute to a person "engaged in carrying on the business of selling dry goods or groceries, or provisions, or drugs as a pharmacist" in the same building unless in a room separated by partitions at least three inches thick extending from floor to ceiling, with no opening or means of entrance or communication between the room where the traffic in liquors is carried on and the store or rooms in which the selling of dry goods, groceries, provisions or drugs as a pharmacist is carried on, and that, inasmuch as that section does not apply to a person engaged in conducting a hotel in the same building in which the proposed traffic in liquors is to be carried on under subdivision 1 of section 11 of the statute, the statement alleged to be false is immaterial, and within the authority of Matter of Kessler ( 163 N.Y. 205) does not present ground for revocation.
It is unnecessary, however, to decide these questions because it is clear that the appellant did not have the consent in writing of the owner or owners, or their duly authorized agent or agents, of two-thirds of the buildings used exclusively as dwellings within the 200-foot limit, and in determining this question it is unnecessary to consider the effect of the conveyance by William H.H. MacKellar as executor prior to the filing of the application for the liquor tax certificate, because it is clear that he did not have the authority required by the statute to sign the consent for the other owners. As executor, having a power of sale, he was not their agent within the meaning of the statute, and the fact that he had the exclusive management of the property, rented it, etc., as testified to by him, did not make him such agent. Subdivision 8 of section 17 of the statute (as amd. by Laws of 1897, chap. 312) reads: "There shall also be so filed simultaneously with said statement a consent in writing that such traffic in liquors be so carried on in said premises during a term therein stated, executed by the owner or owners, or by the duly authorized agent or agents of such owner or owners of at least two-thirds of the total number of such buildings within two hundred feet so occupied as dwellings, and acknowledged as are deeds entitled to be recorded." The expression "duly authorized agent or agents of such owner or owners" includes only such agents as are duly authorized by the owner to sign the consent in his behalf; the mere fact that a person is agent for the owner, to rent the premises and to take such charge of them as an agent to rent generally has, is not sufficient to constitute him an agent duly authorized to sign the consent referred to in the statute. It follows, therefore, that the statement in the application of the appellant with reference to the consent of the owners of two-thirds of the dwellings situated within 200 feet was false, and upon that ground the certificate was properly revoked.
The order appealed from should be affirmed, with ten dollars costs and disbursements.
HIRSCHBERG, P.J., BARTLETT, JENKS and RICH, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.