In re Halbran , 2 Liquor Tax Rep. 245 ( 1900 )

Beekman, J.

The petitioner in this proceeding asks for an order revoking and cancelling a liquor tax certificate on two grounds: (1) Because the applicant therefor gave a false answer to “ question 16 ” in tho statement filed at the time the certificate was applied for, and (2) Because the consents of two-thirds of the owners of the private residences within 200 feet of the premises where the proposed traffic in liquors' was to he carried on had not been obtained and filed as required by law. With respect to the first ground, the application must be denied. The petition does mot state what “ question 16 ” was, nor does it give the answer claimed to have been false. As neither the original statement nor a copy of the same forms any part of the moving papers, the petition is plainly defective, as it fails to comply with the statute which requires the petitioner to state the facts on which his allegations are based, Laws of 1896, chap. 112, § 28, subd. 2. This criticism, however, does not apply to the other ground above referred to, and, as the answer of the respondent puts it in issue, Ihere must be a reference to take proof upon the question. As ¡the respondent contends that this proceeding has been instituted without the authority of the petitioner, evidence may be taken, '¡before the referee upon this point also. The reference should ¿proceed as far as possible from day to day. Counsel for the respondent has urged that, under Matter of Lyman, 160 N. Y. 96, the ¿petition should be dismissed, on the ground that such a proceeding as this cannot be entertained-until'after a conviction of the ¡respondent has been had in a criminal prosecution for the violation of the law which is complained of. In this he is quite mistaken. Whatever was there decided by the Court of Appeals in this connection was carefully limited to cases where the. motion for a revocation of the certificate is based upon a violation of the law occurring subsequent to the issuing of the certificate and subjecting it to forfeiture. Such a case as this, which rests upon the general ground that the respondent was not entitled to receive or hold the certificate when it was delivered, is plainly not within the decision, as the opinión of the court clearly shows.. Still another objection was made to this proceeding on the ground that the petitioner, although averring that he is a citizen of the State of blew York, has failed to show that he is a taxpayer. A reference, however, to section 28, subdivision 2, of the Liquor Tax Law, under which this proceeding was instituted, shows that no other qualification is required than that the moving party should be a citizen of th© State. It is only in the case of a proceeding instituted under section 29 of the law that a private party making the application there authorized must be a taxpayer. The two proceedings are different in character and purpose, and the statutory provisions with respect to one do not apply to or govern the other. The counsel for the respondent cites in support of his claim the case of People ex rel. Smaw v. McGowan, as reported in 60 N. Y. Supp. 407. But there the proceeding was one brought under section 29 of the statute and not under subdivision 2 of section 28, as is the case here. It is true that in the opening words of the opinion as above reported, the latter section is referred to as the one under which the proceeding there was commenced, but a reference to the official report of this case (44 App. Div. 30) shows that the words “ Section 291 of the Liquor Tax Law ” are used in place of the words “ Subdivision 2, section 28, Liquor Tax Law.” Of course the official report' must control. The point thus raised, is, therefore, not well taken,.

Ordered accordingly.