
    Supreme Court, Kings Special Term,
    December, 1899.
    Reported. 29 Misc. 682.
    Henry Nieland, Jr., Plaintiff, v. Michael F. McGrath and Harry W. Michell, as Spec. Deputy Comm’r of Excise for the County of Kings, Defendants.
    Liquor Tax Law—Revocation proceeding must be brought against the actual holder of the certificate.
    Where a citizen seeks a revocation of a liquor tax certificate, the proceeding must be brought against the person who is, at the time, the holder thereof.
    Where it is wrongly brought against the original holder, there is no authority for bringing in his duly constituted assignee; and the proceeding must be dismissed.
    
      This is a proceeding instituted under section 28 of the Liquor Tax Law (Laws of 1896, chap. 112) to revoke the certificate issued to Michael F. McGrath, which, upon his application, was transferred to a different place and subsequently transferred to his wife.
    The defendant McGrath filed an answer setting up the transfer of the certificate to his wife, of which fact the petitioner had no knowledge at the time the proceeding was instituted, and thereupon a motion was made to bring in the wife as party-defendant in the same suit, on the ground that she had knowledge of the whole transaction.
    
      Foley, Wray & Taylor, for plaintiff.
   Garretson, J.:

The proceeding may be brought against the holder of the certificate. Liquor Tax Law, § 28, subd. 2. At the time this proceeding was instituted Elizabeth McGrath was the holder of the certificate by assignment from Michael, consent thereunto having been given by the deputy excise commissioner, upon alleged compliance with the provisions of section 27, id. The right of Elizabeth to hold the certificate and the liability, if any, for a revocation and cancellation thereof, is dependent upon compliance by her with the requirements for the making and filing of a new application and bond as upon an original application. Id., § 27. The statements made by Michael in his application would seem to be immaterial. He is no longer a party in interest, and is estopped by the assignment made by him from claiming any right to the certificate. There is no authority for bringing in Elizabeth as a party to this proceeding. The court may not do this under any of its general or equitable powers or by analogy to the procedure in an action. The proceeding is penal in its nature and the provisions of the statutes in respect thereto must be at least substantially followed, if not strictly complied with.

The motion to dismiss the proceeding must be granted because not brought against the holder of the certificate.

Motion granted with ten dollars costs.  