
    Fourth Appellate Department,
    October, 1904.
    Reported. 97 App. Div. 640»
    In the Matter of the Petition of Patrick W. Cullinan, as State Commissioner of Excise, Appellant, for an Order Revoking and Cancelling Liquor Tax Certificate No. 20,112, Issued to David O’Connor, Respondent.
    
      Royal R. Scott, for appellant.
    The testimony showed sales of liquor on Sundays, July 12th and 19th, 1903, and required cancellation of certificate. (Matter of Lyman v. Gramercy Club), 28 App. Div. 209.) The sales being undisputed, the burden was on respondent to plead and prove his right to sell liquor during prohibited hours. (Lyman v. Young Men’s Cosmopolitan Club, 28 App. Div. 127; Cullinan v. Trolley Club, 65 App. Div. 202.) The sales proven in this case were not made to bona fide guests. (Schuyler v. Rorphuro, 63 App. Div. 206; Matter of Cullinan v. Young, 93 App. Div. 427.)
   Order reversed, with costs, and application granted, with twenty-five dollars costs and disbursements.

Held, that the evidence establishes that the holder of the liquor tax certificate did not comply with, but violated the law.

All concurred, except Williams, not voting.  