Opinion
November, 1898.
George W. Van Slyck, for petitioner.
John M. Ward, for respondent.
The allegations of the petition are denied, in part, by an answer interposed in form as a pleading in an action, and the respondent asks that a referee be appointed to take testimony and report the evidence to the court. The Liquor Tax Law, § 28, subd. 2, as amended by chap. 312, Laws of 1897. This course is not deemed necessary for the reason that there was served with the petition four affidavits which fully sustain the allegations of the petition, and no statement of fact therein set forth is controverted by the affidavit of the respondent also submitted hereon.
This proceeding is instituted to have revoked and cancelled a liquor tax certificate issued on August 20, 1898, by the deputy commissioner of excise for the borough of Brooklyn in the city of New York, which authorized the respondent to conduct the business of trafficking in liquors to be drunk upon the premises at No. 20 Elm place in said borough upon the ground, that a material statement made in the respondent's application for the certificate is false, viz., that there were but three buildings occupied exclusively as dwellings, the nearest entrance to which is within 200 feet, measured in a straight line, of the nearest entrance to the premises where the traffic in liquors was intended to be carried on. Id.
The proofs quite satisfactorily show that such statement was false when so made, and the circumstances tend to indicate that it was known so to be at the time, and that the facts were intentionally withheld, to obtain the certificate, which otherwise, the respondent could not have obtained.
The statement is material, for the commissioner is bound thereby, and has no discretion. People ex rel. Belden Club v. Hilliard, 28 A.D. 140.
In addition to three dwellings mentioned in the application for the certificate (as to two of which the respondent claims that he has secured valid consents), it is conclusively proven that there were at least seven other buildings occupied exclusively as dwellings, the nearest entrance to which, is within 200 feet, measured in a straight line, of the nearest entrance to the premises No. 20 Elm place, as to which no mention is made in the application. It, therefore, appears that of the total number of ten dwellings, the respondent has consents as to two instead of seven, the required two-thirds. Even if the petitioner gave consent as to four of the seven, as claimed (which however is not established) the respondent has still failed to secure a sufficient number of consents. These four consents, if, in fact, given, were not made a part of the application, and they could not be made effective by filing them with the commissioner after the issuance of the certificate. Inasmuch as the commissioner is bound by the statement in the application, the applicant should also be. It was upon the representation of its truthfulness that the certificate was issued.
The further statement made in the application that the premises were occupied for such traffic from 1882 until March, 1897, is of no avail to the respondent. The exemption from the requirements of the statute as to consents is lost by a subsequent discontinuance of the business and the abandonment of the premises for such use. Matter of Ritchie, 18 Misc. 341; People ex rel. Sweeney v. Lammerts, id. 343; affirmed, 14 A.D. 628.
The measurements were properly taken in a straight line, from point to point, as upon the radius of a circle of which the nearest entrance of the premises where the business was to be carried on, is the center, disregarding all obstructions in its course. The Liquor Tax Law, § 17, subd. 8, as amended by chap. 312, Laws 1897; Matter of Ruland, 21 Misc. 504. The prayer of the petitioner is granted.
Petition granted.