
    Second Appellate Department,
    March Term, 1902.
    Reported. 69 App. Div. 399.
    The People of the State of New York ex rel. The Paul Weidmann Brewing Company, Respondent, v. Henry H. Lyman, as State Commissioner of Excise of the State of New York, Defendant. Patrick W. Cullinan, Present State Commissioner of Excise of the State of New York, Appellant.
    Mandamus to compel payment of a liquor tax certificate rebate—A denial that the licensee had been duly tried for a violation of the law and discharged is insufficient.
    On an application for a peremptory writ of mandamus, requiring the State Commissioner of Excise to issue orders for the payment of a rebate alleged to be due upon a liquor tax certificate, a denial in the return that the licensee had been duly tried before a magistrate for a violation of the Liquor Tax Law and had been discharged, is not a sufficient denial of an allegation of fact, but is a mere legal conclusion that the discharge of the prisoner was not in accordance with law.
    Appeal by Patrick WV Cullinan, as State Commissioner of Excise of the State of New York, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 18th day of May, 1901, directing that a peremptory writ of mandamus issue to the successor in office of Henry H. Lyman, as State Commissioner of Excise of the State of New York, requiring him to issue two orders for the payment of a rebate alleged to be due upon a liquor tax certificate issued to Robert E. Mason.
    
      William E. Schenck, for the appellant.
    
      Robert H. Wilson, for the respondent.
   Goodrich, P. J.:

This order should be affirmed on the authority of People ex rel. Fallert Brewing Co. v. Lyman (53 App. Div. 470; affd., without opinion, 168 N. Y. 669). I can find no material difference between the cases. In the Fallert case a certificate of the clerk of the Magistrate’s Court was annexed to the petition, certifying that the complaint against the licensee was dismissed on the merits.

The denial in the return herein that Mason, the original licensee, was duly tried before Magistrate Voorhees and discharged, is not a sufficient denial of a question of fact. It is a mere legal conclusion that the discharge of the prisoner was not in accordance with law. That, as was said by Mr. Justice Jenks in the Fallert case, is worthless. The discharge was a legal discharge, and that is enough. Here, there is no such certificate, but the •allegation is explicit and sufficient to establish the fact of acquittal.

At the present term we have held, in People ex rel. Stevenson Brewing Co. v. Lyman (69 App. Div. 406), that an alternative writ of mandamus was proper, because the return charged violations of the law other than the one upon which there had been a trial and dismissal.

In the return in the present case there is no violation alleged other than the one which has been tried, and consequently there is no issue to be tried.

The order must, therefore, be affirmed, with costs.

All concurred.

Order affirmed, with ten dollars costs and disbursements.  