Commissioners of the Almshouse v. Osterhoudt , 30 N.Y. Sup. Ct. 66 ( 1880 )

By the Court :

The main question involved in these cases is not one of principle. It involves only the putting of some construction on the confused and careless legislation in regard to excise matters, and of determining what' officers under conflicting statutes have the right of action. Since the argument a decision on a case closely analagous has been published, made by the General Term of -the Second Department in Board of Commissioners v. Glennon (28 Sup’m. Ct. [21 Hun], 215). This decision sustains the position'of the plaintiffs in the present cases. On a question of this kind, especially, there should be no conflict between the decisions in the several departments of this court. Whatever, therefore, our own views might be, we follow the case above cited, on the point of the authority of the plaintiffs to bring the action.

In the first case another point is made, the defendant claiming that the time of sale was covered, by one or the other of his licenses. We do not think that the license granted August, 1S78, authorized the sale made in the previous July. If the sale was not .lawful when made, the subsequent license could not have a retroactive effect and legalize the sale. Nor do we think that the license granted August, 1877, which by its terms ended May 1, 1878, authorized the .sale made in the following July. Even if, as the defendant claims, the license ought to have run for a year from date, it did not, and the defendant accepted it as it was..

The judgment must be affirmed, with costs.

Present — Learned, P. J., Bockes and Landon, JJ.

Judgment affirmed, with costs.