
    First Appellate Department,
    June Term, 1904.
    Reported. 95 App. Div. 492.
    Patrick W. Cullinan, as State Commissioner of Excise of the State of New York, Appellant, v. Daniel F. Quinn and The Fidelity and Casualty Company of New York, Respondents.
    Liquor tax certificate—Action on the bond given by a hotel keeper—What is not a cross-examination—When a party is at liberty to claim that questions relating to the condition of the hotel, as to which he has already been examined and cross-examined, will incriminate him.
    Upon the trial of an action brought by the State Commissioner of Excise against the principal and the surety named in the bond given by the principal to obtain a hotel liquor tax certificate, one of the issues litigated was whether the premises in question constituted a hotel within the meaning of the Liquor Tax Law.
    
      The principal in the bond was called as a witness by the defendants and testified as to the sale and the condition of the premises. He was cross-examined by the plaintiff’s counsel upon the subject and after his redirect examination the defendants rested. The plaintiff then called a special agent of the excise department who had examined the premises seven months after the alleged violation of the law and who produced a diagram of the premises as they existed at that time. The plaintiff then recalled the defendant who was the principal on the bond, and asked him whether the premises were in the same condition at the time the diagram was made that they were at the time of the alleged violation. The defendant objected to answering the question on the ground that his answer would tend to incriminate him, and the court sustained the objection.
    
      Held, that when the plaintiff recalled the defendant he made him his own witness, and that he was then entitled to claim his privilege and refuse to answer any questions which would tend to incriminate him.
    Appeal by the plaintiff, Patrick W. Cullinan, as State Commissioner of Excise of the State of New York, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 9th day of April, 1903, upon the verdict of a jury, and also from an order-entered in said clerk’s office on the 30th day of March, 1903, denying the plaintiff’s motion for a new trial made upon elie minutes.
    
      William E. Schenok, for the appellant.
    
      James J. Walsh, for the respondent Quinn.
    
      Charles C. Nadal, for the respondent company.
   Ingraham, J.:

This action was brought to recover upon a bond given by the defendants to enable the defendant Quinn to obtain a liquor tax certificate to permit him to traffic in liquors at No. 623 Eleventh avenue, in the city of New York. The condition of the obligation was “ that if the said Liquor Tax Certificate applied for is given unto the said principal, and the said principal will not, while the business for which such Liquor Tax Certificate is given shall be carried on, * * * -violate any of the provisions of the Liquor Tax Law, or any act amendatory thereof or supplementary thereto, * * * then the above obligation to be void; otherwise to remain in full force and virtue.”

The violation of the law upon which this action is based was that the defendant Quinn did, on Sunday, February 16, 1902, wrongfully and unlawfully sell liquor upon his premises, that day being Sunday. In his application for a liquor tax certificate, Quinn stated that the application ivas made under subdivision L of section 11 of the Liquor Tax Law (See Laws of 1896, chap. 112, as amd. by Laws of 1897, chap. 312) ; that he carried on the business of a hotel upon the premises; that such hotel conformed to the laws, ordinances, rules and regulations relating to hotels and hotelkeepers; that his building contained at least ten bedrooms above the basement, as required by tlie Liquor Tax Law. (See § 31, as amd. by Laws of 1897, chap. 312.) Upon this application and the bond executed by the defendants, there was issued the usual liquor lax certificate. The plaintiff introduced evidence tending lo show that on Sunday, the sixteenth of February, four special agents of the State Excise Department called at Quinn’s liquor store and purchased whisky, without ordering or being furnished with a meal, and there was also evidence tending to show that the premises did not comply with the provisions of the statute as to the requisites of a hotel. The plaintiff then rested, the defendant Quinn introduced evidence tending to show that these special agents had come to his place of business, had ordered a meal, and with that meal were furnished whisky, and that the building complied with the requirements of the Liquor Tax Law. Upon this testimony there was a question of fact for the jury which was submitted to them by a charge which was unobjectionable, and to which no exception was taken; and I think the verdict of the jury was conclusive, unless there was error committed upon the trial to which an exception was taken.

The only exception in the record which requires notice arises from the refusal of the court to require the defendant Quinn to answer certain questions asked him by the plaintiff. Quinn was called as a witness for the defendant and testified as to the sale of the whisky, and as to the premises upon which the whisky was sold. He was cross-examined by counsel for the plaintiff at considerable length in relation to the number of rooms in his hotel, their size and who occupied them. After a re-direct examination the defendants rested, whereupon the plaintiff called as a witness a special agent, of the State Excise Commissioner, who examined the premises in October, 1902, seven months after the alleged viola tion of law. He produced a diagram of the premises as it existed at the time that he examined it. The plaintiff then recalled the defendant Quinn and asked him whether the premises were in the condition in October that they were in the preceding February, at the time of the alleged violation. The defendant objected to answering on the ground that the answer would tend to incriminate him; that objection was sustained by the court, and the plaintiff excepted.

It does not appear that this was a cross-examination of the defendant. He had been fully cross-examined and the defendants had then rested their case. When the plaintiff recalled Quinn as a witness he recalled him as his own witness, and the witness was then entitled to claim his privilege and refuse to answer questions which would tend to incriminate him. Any question which would tend to show that his application for a liquor tax certificate was false would clearly tend to incriminate the witness, as tending to show him guilty of perjury in swearing to the application as well as guilty of a violation of the Liquor Tax Law. (See § 34, subd. 2, as amd. by Laws of 1900, chap. 367.) And while this, if a part of the witness’ cross-examination, he having testified to the condition of the premises upon the day of the alleged violation, might have been competent, the plaintiff having failed to ask that question upon cross-examination, and then after the defendants had rested, having recalled Quinn as a witness, thereby making him a witness for the plaintiff, Quinn was then entitled to claim his privilege and refuse to answer any question which would tend to criminate him.

I do not think, therefore, that it was error for the court to allow the defendant Quinn to claim his privilege and refuse to compel him to answer this question, and as this is the only exception in the case that presents any question I do not think we would be justified in ordering a reversal.

The judgment and order appealed from should be affirmed, with costs.

Van Brunt, P. J., Patterson, McLaüghlin and Laughlin, JJ., concurred.

Judgment and order affirmed, with costs.  