Opinion
February Term, 1900.
Moses Weinman, for the appellant.
Herbert H. Kellogg, for the respondent.
On the 13th of May, 1898, a liquor tax certificate was issued to Patrick J. Monahan, authorizing him to traffic in liquors at No. 1588 First avenue in the city of New York.
In November following application was made by the State Commissioner of Excise to revoke and cancel the certificate upon the ground (1) that the answers made by Monahan to two questions in his application for the certificate were false and material statements, and (2) that he had forfeited his right to the certificate by selling liquors, after the same was issued to him, contrary to law.
The questions to which it was alleged he made false answers were, (1) "May the applicant lawfully carry on such traffic in liquors on such premises?" (2) "Does the applicant intend to traffic in liquors under the certificate applied for in any building, yard, booth, or other place, which is on the same street or avenue and within 200 feet of a building occupied exclusively as a church or schoolhouse?" The first question was answered in the affirmative and the second one in the negative.
In the petition by which the proceeding was instituted it was alleged that in answer to the two questions the defendant made material false statements in saying that his premises were not located within 200 feet of a building occupied exclusively as a church or schoolhouse, and that he could lawfully carry on the traffic of liquor on such premises.
In the answer interposed to the petition, the defendant denied that his premises were located within 200 feet of St. Monica's school (the building referred to in the petition), or on the same street with it, or that that building was occupied exclusively as a schoolhouse. He also denied that he had forfeited his certificate by violating the law.
The issues raised by the petition and answer were sent to a referee to take the proof and report the same to the court. Upon the coming in of the report, the court, at Special Term, held that Monahan's premises were located within 200 feet of a building used exclusively as a schoolhouse, and also that Monahan had forfeited his right to the certificate by violating the Liquor Tax Law (Laws of 1896, chap. 112), in selling liquors on Sunday. An order was made revoking and canceling the certificate, from which Monahan has appealed.
After a careful consideration of the testimony taken by the referee, we are entirely satisfied with the conclusion reached by the court at Special Term, that St. Monica's school is a building used exclusively as a schoolhouse, within the meaning of the statute, and that Monahan's premises are on the same street and less than 200 feet from it.
It was conceded, at least it was not seriously contested, that the appellant's saloon was located upon the same street and was less than 200 feet from St. Monica's school. It was urged, however, in the court below, as it was on this appeal, that St. Monica's school building was not used exclusively as a schoolhouse.
The testimony taken by the referee showed that there was one small room in the school building which was used as a library, in connection with the school, and in which charitable, religious or temperance societies occasionally met in the evening, and for which they paid a nominal rent to defray the cost of lighting and heating the room.
The fact that these societies occasionally met in this room did not deprive the building itself of its general character. It was a school building, built for and devoted to that use, and used exclusively for that purpose within the meaning and intent of the statute. The manifest purpose of the statute in this respect is to prevent the traffic in liquors within a specified distance of a school building, in order that the attendants of the school may not be subjected to the evil influences incident to or connected with the traffic in intoxicating liquors. This is the purpose of the statute and the object sought to be accomplished by it, and, as such, it should receive a liberal construction. Unless the court can see that some portion of the building is devoted to an object foreign to education, it will not nullify the statute by depriving the building of the benefit sought to be conferred upon it. In People ex rel. Cairns v. Murray ( 148 N.Y. 171) the court held that a building erected and used for a school does not fail to come within the designation of a building occupied exclusively as a schoolhouse, merely because the teachers, or some of them, reside in it.
In this room was the school library. Its use for that purpose was a part of the general work of the school, just as much as if it had been devoted to or used for a recitation room, and the fact that the meetings referred to were occasionally held in it did not, and could not, as I have already said, change the general character of the building itself. When, therefore, the appellant stated in his application that he did not intend to traffic in liquors under the certificate applied for in any building which was on the same street or avenue, and within 200 feet of a building occupied exclusively as a church or schoolhouse, he stated what was not true. It was a material statement, and the court had no other alternative than to revoke and cancel the certificate. This conclusion renders it unnecessary to consider or pass upon the question of whether or not he had forfeited his right to the certificate by selling liquors on Sunday.
It is, however, urged by the appellant that the time for which the certificate was issued having expired before the order revoking and canceling it was made, the proceedings, for that reason, should have been dismissed. We do not think so. The order was made under subdivision 2 of section 28 of the Liquor Tax Law (Chap. 112, Laws of 1896, as amd. by Laws of 1897, chap. 312). It settled and determined the character of St. Monica's school building, and that the appellant had no right to traffic in liquors on the premises at the place for which he had applied for and obtained a liquor tax certificate. This of itself constituted such interest, not only as to the defendant, but to the public generally, as to require a decision. ( Matter of Goodman, 146 N.Y. 286.) Under the statute, costs may be awarded in favor of the successful party, and for that reason the petitioner had the right to have the proceeding determined as of the day when the petition was filed, and the order, when it was made, related back to and took effect as of that day.
The order is right and must be affirmed, with costs.
VAN BRUNT, P.J., BARRETT, PATTERSON and O'BRIEN, JJ., concurred.
Order affirmed, with costs.