
    Matter of the Petition of Patrick W. Cullinan, as State Commissioner of Excise, for an Order Revoking and Cancelling Liquor Tax Certificate No. 4077, Issued to Thomas F. Gallagher. Matter of the Petition of Patrick W. Cullinan, as State Commissioner of Excise, for an Order Revoking and Cancelling Liquor Tax Certificate No. 3536, Issued to Axel J. Young.
    (Supreme Court, Kings Special Term,
    December, 1902.)
    Liquor ■ Tax Law — Kevocation of certificate — Jurisdiction when obtained — Proof and trial — Limiting issues.
    The court gets jurisdiction of the parties to and the subject matter of a proceeding, taken under the Liquor Tax Law (L. 1896, chi 112, § 28, subd. 2), to revoke a certificate, upon service of the petition and order to show cause, and this although the petition be on information and belief.
    In any and every case, however, a violation of the statute must be established by legal proof before the certificate can be cancelled.
    The court will not limit the trial of the charges, contained in a petition such as the above, to those supported by a probative affidavit, merely because the holder of the certificate denies some of the charges and fails to deny others, and for the reason that he may succeed on charges which he denied and yet forfeit his certificate if sufficient proof is made of charges which stand undenied.
    Motion by respondent to limit the issues to be tried in a reference under section 28, subdivision 2, Liquor Tax Law (L. 1896, ch. 112), to those violations alleged in the petition which are supported by a probative affidavit.
    E. B. Barnum, for motion.
    William Vanamee and Herbert H. Kellogg, in opposition.
   Marean, J.

The court gets jurisdiction of parties and subject-matter upon service of the petition and order to show cause, although the petition may be made on information and belief. If it is so made and is unsupported by any affidavit affording legal proof of the violations charged, the court cannot proceed to revoke the certificate without first taking proof, either orally or by affidavit, or upon a reference.

The petition is like a complaint in an action for specific relief; judgment is not to be entered.upon it by default without proof of the facts; or rather it is analogous to an information before a magistrate in a criminal case, which is no warrant for depriving the accused of his liberty or property, until supported by proof. Though all the allegations of the petition are upon information and belief, and the defendant makes no answer whatever, I think it is the duty of the court to order a reference to take proof of the violation alleged, upon the coming in of which the certificate may be revoked. And if the defendant answers denying one violation, but not denying another, it should be referred to take proof upon the issue made, and of the allegations unanswered, and though the issue may be determined in favor of the defendant, the certificate may be revoked and cancelled for the violations which stand undenied, if the proof warrants it. A reference will be made to cover all violations charged in the petition.

Ordered accordingly.  