
    Supreme Court, New York Trial Term,
    January, 1905.
    Reported. 46 Mise. 188.
    Patrick W. Cullinan, as State Commissioner of Excise, Plaintiff, v. Francis A. Clark and The United States Guarantee Company, Defendants.
    Liquor Tax Law—Section 31k, as amended in 1903—“Hotel”—“Other dwellers.”
    The test whether a building, used and kept open for the feeding and lodging of guests, is a hotel within the meaning of section 31 k of the Liquor Tax Law as amended in 1903, is what the landlord is willing to do, and sometimes does do, in the way of receiving visitors without any agreement as to rate or time and not what he may do in other cases and with other visitors in the way of making such engagements in advance, and the mere presence of guests, who have a stipulated engagement as to the duration of their stay and rate of compensation to he paid, cannot operate to deprive that which is a hotel of its character as such.
    The words “other dwellers”, in section 31k of the Liquor Tax Law as amended in 1903, mean other than guests in a hotel under a stipulated engagement or without one.
    Motion for a new trial on the justice’s minutes. The nature of the action and the material facts are stated in the opinion.
    
      Herbert II. Kellogg (Albert 0. Briggs, of counsel), for plaintiff and motion.
    
      James J. Walsh, for defendant Clark, opposed.
    
      J. Frank Yawger, for defendant United States Guarantee Company, opposed.
   Giegerich, J.:

This action is brought by the State Commissioner of Excise of the State of New York against the defendant Clark as principal, and the defendant the United States Guarantee Company, as surety, to recover $1,800, the penalty of a liquor tax bond. Various violations of the liquor tax regulations are averred and sharply conflicting testimony was given upon the trial as to such alleged violations, but the verdict of the jury in favor of the defendants renders it unnecessary to discuss any but one of these instances, namely, the one of June 7, 1903, and even as to this practically the only issue is whether the premises in question did or did not constitute a hotel within the definition of that term, as given in section 31 of the Liquor Tax Law, as that section existed and was in effect on the date last mentioned. See Laws of 1903, chap. 486, amending, among other portions of the act in question, section 31 thereof. That section, in subdivision k thereof, among other things, makes the following definition: “The term ‘hotel’ as used in this act shall mean a building regularly used and kept open as such for the feeding and lodging of guests, where all who conduct themselves properly and who are able and ready to pay for their entertainment, are received, if there be accommodations for them, and who, without any stipulated engagement as to the duration of their stay, or as to the rate of compensation, are, while there, supplied, at a reasonable charge, with their meals, lodgings, refreshment and such service and attention as are necessarily incident to the use of the place as a temporary home, and in which the only other dwellers shall be the family and servants of the hotel keeper.” On behalf of the plaintiff it is insisted that the testimony of the defendant Clark himself showed that the place he kept was not a hotel within the terms of the above quotation, since it appeared that some pf the dwellers in the building paid a stipulated weekly or monthly sum for their respective apartments, and, consequently, that they constituted “other dwellers” beside the guests and family and servants of the hotel-keeper. At first blush it might appear that this contention is well founded, but when the section in question is read in the light of the well-known and long-established rules as to what constitutes a hotel and what are the duties and obligations of a hotel-keeper, I am satisfied that the inmates of the building who thus paid at a stipulated rate of compensation should properly, so far as the evidence in this case shows, be termed “ guests.” That there were rooms of the size and number required by the statute, kept open and free for the accommodation of transient guests who might apply, was shown by the testimony of the defendant Clark. It is claimed that this testimony was contradicted by that of the witness Levis, the agent of the building in charge at the time of some of the later alleged violations, to wit, those of December, 1903, and January, 1904. An examination of his testimony shows, however, that he testified only to the condition of affairs in December, 1903, and January, 1904, and expressly stated that he could not say “ what the condition of things was on the date June 7, 1903.” The verdict of the jury, upon sufficient evidence, has, therefore, established the fact that the defendant Clark, on the date in question, used and kept open his building for the feeding and lodging of guests, and had therein accommodations of the extent and character required by the statute for the use of transient visitors who might apply and who conducted themselves properly and were able and ready to pay for their entertainment, and that such entertainment was offered to such transient visitors without any requirement on the part of the landlord of a previous stipulated engagement as to the duration of their stay or as to the rate of compensation. The mere presence of some guests, who have made a stipulated engagement as to the duration of their stay, or as to the rate of compensation they should pay, cannot operate to deprive that which is a hotel of its character as such. The test is what the landlord is willing to do and sometimes does in the way of receiving visitors without any agreement as to rate or time, and not what he may do in other cases and with other visitors in the way of making .such engagements in advance. Were it otherwise a visitor would, by asking the price of rooms and selecting one at some specified rate and engaging it for one night or two nights or any other stated term, change the character of the oldest or largest or- best established hostelry, and render, within the meaning of the statute, not a hotel that which in common acceptance and under ancient and well-established rules of law is a hotel. If such an interpre tation of the statute were recognized it is doubtful if there is a single- public house in the State that continues to be a “ hotel y from one year’s end to another. My conclusion' is that the words “ other dwellers ” mean other than guests of either character, that is, either those who are in the hotel under a stipulated engagement or those there without any such engagement. The motion for a new trial is, therefore, denied.

Motion denied.  