
    Supreme Court, Monroe Special Term,
    May, 1896.
    Reported 17 Misc. 19.
    Matter of the Application of Frank P. Underhill.
    1. Excise—Liquor Tax Law—Measurement of distance between saloon and nearest dwelling.
    In determining whether the distance between the entrance to a saloon and that of the nearest dwelling is within 200 feet, the statute (chapter 112, Laws of 1896) does not require the measurement to be taken in a direct line where buildings or parts of buildings intervene, but such measurement should be taken by the most feasible and practicable manner of passing between them, without regard to the sidewalks, and around a corner if necessary.
    2. Same—Entrance to saloon situated in second story.
    Where a saloon is situated in the second story of a building, at the head of a stairway used in common by tenants of the building, the street entrance is the one, within the meaning of the statute, from which the measurement should be made.
    Application to revoke and cancel a liquor tax certificate issued to the respondent under the provisions of the Liquor Tax Law, upon the ground that the nearest entrance to the respondent’s premises in which he is engaged in the traffic in liquors is within two hundred feet of the nearest entrance to a building or buildings occupied exclusively for a dwelling, and that the respondent upon making his application for a certificate did not file with his statement a consent in writing executed by at least two-thirds of the owners of such buildings that such traffic might be carried on in the place aforesaid.
    Royal R. Scott, for petitioner.
    John Colmey, for respondent.
   Nash, J.

The question presented here is, whether within the meaning and intent of the statute the nearest entrance to the premises of the respondent is within two hundred feet of the nearest entrance to a building or buildings occupied exclusively for a dwelling.

The respondent’s premises, in which the traffic in liquors is carried on by him under the certificate which he has obtained, consist of rooms of which he is the lessee occupied by Mm as a saloon situate in the second story of the building in the village of Victor, known as the Lovejoy block, the entrance to which is by a covered stairway leading np from the sidewalk below and in front of the building. The stairway is outside of the Lovejoy building and between that and another building known as the Simonds block, the distance between the buildings being the width of the stairway. This stairway is used in common by the occupants of the second floors of both buildings.

It is contended on behalf of the respondent that, the entrance to his premises is the door of his saloon at the head of the stairway, and that measuring from that entrance down the stairs and by the nearest feasible way from the foot of the stairs to the nearest entrance of the nearest building exclusively occupied as a dwelling, the distance from the entrance to his saloon is over two hundred feet. But measuring the distance from the door of the saloon through buildings in an air line, the distance is less than two hundred feet to several of the neighboring dwellings. The provision of the statute under consideration should have a reasonable construction, and it would seem that the most feasible way which one could go from the entrance to the saloon to the entrance to a dwelling, not necessarily by the sidewalk, but in an air line where it is practicable, as by going directly or diagonally across a street or a yard, or around the corner of a building if that is the only way practicable to go from one point to the other, is the way of measurement intended by the legislature; if a direct line from one place to the other in all cases were intended, the law should have so stated.

As to the question which shall be regarded as the nearest entrance, the door entering the room or the entrance at the foot of the stairway, the case is not so clear. The door at the head of the stairway is the entrance to the respondent’s premises. That is the entrance into his saloon from the outside of the building and the only entrance thereto which he owns and has the exclusive control of, the stairway being used in common with the occiipants of the other building. But the stairway is an entrance to his premises, and it also is an entrance which he has the legal right to use and does use. If he had the exclusive use and control of the stairway under the demise of the saloon premises there would, I think, be no question but that the entrance to the stairway would be regarded as the entrance to the respondent’s premises and the nearest entrance within the meaning of the statute from which the measurement to the entrances of the dwellings within two hundred feet therefrom should be made. The fact that the demise is of the use of the stairway in common with others makes it no less an entrance to the respondent’s saloon.

The object of the provision of the statute under consideration is to remove places in which traffic in liquors is carried on from close proximity to dwellings. The law fixes two hundred feet between the nearest entrance to the dwelling and the nearest entrance to the premises where the traffic in liquor is carried on as the limit. These would ordinarily be the street entrances, and were no doubt the entrances which were intended to be taken for the purpose of the measurement.

I am of the opinion that in this case the street entrance to the respondent’s premises is the one, within the meaning of the statute, from which the measurement should be made. If the foot of the stairway is taken as the entrance to the respondent’s premises from which to measure to the nearest entrance to a building occupied exclusively for a dwelling, measured in the way already indicated, a direct line over an unobstructed route across the street to the entrance to the premises of Mr. Gallup, and thence directly to the entrance to his dwelling, the distance is less than two hundred feet, and consequently the respondent was not entitled to Liquor Tax Certificate, No. 29,332, issued to him by the treasurer of Ontario county.

Order revoking and cancelling the same granted; the question being new it is without costs.

Application granted, without costs.  