Opinion
May 10, 1907.
E.S. Booth, for the appellant.
Maurice Fitz Gerald, for the respondent.
This proceeding was instituted under section 28, subdivision 2, of the Liquor Tax Law, upon the petition of Adam A. Schopp. An order to show cause was issued, returnable at Special Term December 19, 1906. The respondent, Breslin, appeared and made a motion to dismiss the proceeding on the ground of the insufficiency of the moving papers. The petitioner moved for the appointment of a referee to take proofs in support of the allegations of the petition. The court denied the motion to dismiss and granted the motion of the petitioner to refer. It is now conceded by all the parties represented upon this appeal that the court was without warrant of law to order a reference, and that the order in that respect must be reversed.
The right of the petitioner to institute this proceeding is purely statutory. It is provided by section 28 of the Liquor Tax Law that "Any taxpayer of the city, village or town for which" the liquor tax certificate sought to be revoked was issued, may institute and maintain a proceeding for the revocation of the liquor tax certificate, for the reasons set forth in the act. The petition here contained the following allegation: "That your petitioner is the owner of the property No. 303 East 12th Street, in the Borough of Manhattan, City of New York," and "That your petitioner is a citizen of the State of New York, a resident of the Borough of Manhattan, City of New York, and resides within 200 feet of No. 190 Second Avenue, in the Borough of Manhattan, City of New York." It is clear that the allegation of the petition is in full compliance with the statute, in that the petitioner shall be a resident of the city in and for which the certificate is sought to be revoked. It is, however, contended that there is a failure to make it appear that the petitioner is a taxpayer of the city. In this we do not concur. It is alleged that the petitioner is the owner of real estate, which gives rise to the presumptive fact that he is a taxpayer. It is a traversable fact, and if it is disclosed upon the trial, after issue joined, that the petitioner is not taxpayer, then the proceeding may be dismissed. We hold that the allegation is adequate to authorize proof upon that issue.
That part of the order directing a reference is reversed, and in other respects affirmed, without costs of this appeal or in the court below. The respondent may serve an answer, if he is so advised, within ten days.
PATTERSON, P.J., INGRAHAM, CLARKE and HOUGHTON, JJ., concurred.
Order modified as directed in opinion, without costs, with leave to respondent to answer as stated in opinion.