Opinion
October, 1907.
Andrew F. Van Thun, Jr., for petitioner.
Martin P. Lynch, for defendants.
The application to revoke and cancel the liquor tax certificate No. 10,310, issued to and held by George Monsees and John Leide for 5924 Fifth avenue, is granted.
The statute (L. 1896, ch. 112, § 17, subd. 8) requires that before a license to sell liquor shall be issued there must be obtained and filed consents in writing that such traffic in liquors be so carried on in the place intended, executed by the owner or owners, or by a duly authorized agent of such owners, of at least two thirds of the total number of dwellings within 200 feet of that place.
The application for this license stated that there were twelve such dwellings within 200 feet of the premises for which the license was asked and that the owners of all had consented as required.
Such is not the fact. Seven of these dwellings were owned by David Meyer and Blanche M. Meyer, his wife, as tenants by the entirety; that is, until the death of either, they held the property as tenants in common. Hiles v. Fisher, 144 N.Y. 308; Grasser v. City of Rochester, 148 id. 235. The husband could not convey away or injure the wife's one-half undivided interest without her consent, neither could he give the consent, required of dwelling owners by the Liquor Tax Law, so as to bind her. David Meyer gave his consent for the seven dwellings owned by him and his wife, but the wife refused to consent and testifies that she never authorized him to act for her. Mr. Meyer does not claim that he signed for anybody but himself, and the marital relation constitutes no agency in this case. It, therefore, follows that the owners of seven of the twelve dwellings within 200 feet of 5924 Fifth avenue never consented to the traffic in liquor at that place.
Furthermore, the license for this place was originally obtained for April only. No license was procured for May or June; and, in fact, no liquor was sold nor business of any kind carried on in the premises — unfinished and in process of construction — until after July 19, 1907. This condition did not constitute a continuous occupation for the liquor traffic so as to do away with property consents for the license issued July 19, 1907, and the statements of continuous occupation in the application were materially false.
As above stated the license is revoked and cancelled.
Application granted.