
    The People of the State of New York on the Complaint of Thomas Kenny, Plaintiff, v. John Tyrrell, Defendant.
    City Magistrates’ Court of New York, Borough of Manhattan, Fifth District,
    February 7, 1935.
    
      Frank J. Ricca, for the defendant.
   Aurelio, City Magistrate.

The complaint herein charges that the defendant did keep in premises No. 1875 Lexington avenue “ a pint flask partly filled with whiskey without having a written license for same,” and further that the defendant was the bartender in charge of said premises which is a duly licensed beer garden and restaurant, and that the license for said place does not include liquors.” In other words, the charge is made that the defendant, a bartender, possessed liquor in premises licensed to sell beer only. These facts, it is claimed, constitute a violation of section 108 of chapter 478 of the Laws of 1934, known as the Alcoholic Beverage Control Law. This section provides:

§ 108. Restrictions upon beer licensees. No person holding a beer license issued pursuant to chapter one hundred and eighty of the laws of nineteen hundred thirty-three or this' chapter shall keep or permit to be kept or consumed on the licensed premises any liquor or wine, unless such beer licensee shall be the holder of an appropriate liquor or wine license.”

The defendant, concededly, is only the bartender; the license was not issued to him; therefore, he is not a person holding a beer license ” nor is he “ such beer licensee ” referred to in section 108, because section 3, subdivision 18, of said law defines a “ licensee ” as “ any person to whom a license has been issued pursuant to this chapter.”

Nowhere in the law does it appear that the provisions of section 108 are applicable to a person other than the holder of the license. Therefore, the complaint must be dismissed and the defendant discharged.  