
    Matter of the Petition of Stella M. Griffin for an Order Revoking Liquor Tax Certificate No. 33,010, Issued to Walter W. Clayton.
    (Supreme Court, Jefferson Chambers,
    September, 1907.)
    Intoxicating liquors — Granting license: Sufficiency of application for license; Consent of property owners — Requisites.
    Under the provisions of the Liquor Tax Law (L. 1896, ch. 112, § 17, subd. 11), which require that a duly verified and signed statement of an applicant for a liquor tax certificate shall be filed in the office of the county treasurer who shall endorse thereon the date of its receipt, the amount of tax paid, the date of issuing the tax certificate and the premises -where the business is to be carried on, and that “ such indorsement shall be received in evidence in all courts of this state and shall be competent and sufficient prima facie evidence of all the facts stated therein,” said statement together with the consents in writing of owners of dwellings within 200 feet from the premises designated for the traffic in liquors, which by subdivision 6 of said section are required to be filed “ simultaneously ” with said statement, and the indorsement of the county treasurer constitute the complete record of a particular case; and the record is not amendable, but must remain without erasure or interpolation; and, if for any reason the papers be deemed insufficient, new ones should be made and filed so that the facts as they actually occurred will appear.
    The consents in writing of property owners filed August 8, with an application for a liquor tax certificate, cannot he used, with the statements of other applicants placed on file twenty days there-' after, as the basis of a. subsequent application.
    The provision of subdivision 6 of said section 17, as amended in 1897, that such consents shall be executed and acknowledged as deeds entitled to he recorded, contemplates that such consents shall be subscribed at the end thereof by the property owners; and, where to make up the number required by the statute the names of two are written on a “ rider ” and affixed to the original statement already on file and above the consenting clause, such consents are insufficient and a liquor tax certificate issued thereon but not delivered will be canceled.
    Motion to cancel a liquor tax. certificate issued but not delivered. The opinion states the case.
    
      James A. Ward, for petitioner.
    Joseph Kellis, for defendant.
   Rogers, J.

The premises in question, Ko. 40 Mill street, in the city of Watertown, Jefferson county, K. Y., have never been used for the sale of liquors.

On the 8th of August, 1907, William W. Thomas and William Place, having obtained a lease of said premises from the owners thereof specifying that the said premises were to' be used for the traffic in liquors, filed with the treasurer of Jefferson county a statement, duly signed and verified by them, whereby they applied for a liquor tax certificate authorizing the carrying on of said business at said street and number.

There was attached the consent of the owners of certain dwellings situate within a radius of 200 feet from the place designated for such traffic.

The bond required was filed and the tax paid, whereupon a certificate was issued to said Thomas and Place for the purpose aforesaid.

Before entering upon said business it was discovered by said applicants that the requisite number of persons required to consent had not been obtained, and they voluntarily surrendered said certificate and made an application to the proper authorities for a return of the money paid therefor.

Thereafter, said lease was duly assigned to the respondent, Walter W. Clayton, who, on the twenty-eighth day of August, made an application to the county treasurer for a like liquor tax certificate and executed and filed the requisite bond, seeking to avail himself of the consents obtained by Messrs. Thomas and Place and adding thereto others sufficient to make the statutory number.

The additional names intended to supply the omission are written on a “ rider ” affixed to the original statement of Thomas and Place, but above the consenting part, so that, preceding* the names attached to amend the paper on file, there is only the statement of Thomas and Place, the consents obtained by them being made to follow the rider.

This new piece of paper with the additional names attached was filed with the county treasurer August 28, 1907, and the money paid; and a liquor tax certificate running to Clayton was filled out and signed by the treasurer, ready for delivery when called for, which delivery was stayed by .this proceeding to cancel.

Whether Clayton can have the benefit of the prior consents would not. seem to be doubtful, except for the fact that the application blanks furnished by the excise department pursuant to statute put the question whether the consents had been obtained and filed heretoforebut I do not think this controlling.

The statute provides that, with the statement constituting an application for a liquor tax certificate, there shall be filed simultaneously ” the necessary “ consents ” that such traffic in liquors he carried on at the premises mentioned. Liquor Tax Law, § 17, subd. 6.

Down to this time the right to traffic in liquors in the premises in question had never been acquired, as was done in Matter of Hawkins, 165 N. Y. 188; it was an original application.

It does not seem to me that the consents filed August eighth can by "a fair construction of the language of the statute he said to have been filed “ simultaneously ” with a statement which was placed on file in the office of the county treasurer twenty days thereafter.

The original consents were filed simultaneously ” with the Thomas and Place statement and pertained to' it and to it alone. To say that the then filing was simultaneously with the filing of a later paper would be a perversion of the meaning of a well understood word.

If this could be done after twenty days, why not six months or twelve months %

I can see no safety in such a departure from the express language of the statute.

There are authorities to the effect that a paper in a judicial proceeding constituting a part of the record may not be used again in another proceeding, even where the same statement is required to be made or. fact shown (McCoy v. Hyde, 8 Cow. 68; Cutler v. Biggs, 2 Hill, 409); though, in the case of a vacated attachment, the affidavit on which it was obtained may be used to procure a second warrant. Mojarrieta v. Saenz, 80 N. Y. 547.

The last case cited, however, may not be an authority here, as the statute docs not require that the. warrant be filed at all, but that the affidavit be filed within ten days. Code Civ. Pro., § 639.

It seems to me that the Thomas and Place consents had served their purpose, had spent themselves and could not again be used as the basis of an application for a tax certificate.

Assuming, however, that a consent may be used a second time, can it be done in the manner employed here %

The statute (§ 17, subd. 11) requires that the statement shall be filed in the office of the county treasurer, who shall indorse thereon the date of its receipt, the amount of tax paid, the date of issuing the tax certificate and the premises where the business is to be carried on and that “ such indorsement shall be received in evidence in all courts of this state, and shall be competent and sufficient prima facie evidence of all the facts stated therein.”

The statement, consent and indorsement 'Constitute one complete record of the particular case.

Ho authority is given for amendment as in case of judicial proceedings; therefore, it would seem that the original record in the office of the county treasurer, as made, should remain as it was, without erasure or interpolation, and that if, for any reason, the papers be deemed insufficient, new ones should be made and filed so that the facts would appear as they actually occurred.

Any other course would subject a solemn record, filed in an important county office, to manipulation whereby rights might be improvidently conferred or destroyed.

The alteration might not appear on the face of the particular record, and it might be inconvenient, or impossible, to show the fact by evidence aliunde.

Before the change, the papers would be evidence of one thing; after the alteration, of quite another; and thus the intent of the statute giving them verity as “ competent and sufficient prima facie evidence of all the facts stated therein” and making them admissible as such in “ all courts of this state” would be frustrated.

The purpose of the person who added the rider to the Thomas-Place statement was, no doubt, honest and well intended; but that does not justify a manipulation of a public document, lodged in a public office of the dignity of the one in question.

I conclude, therefore, that the consents annexed to the Thomas and Place statement could not be amended in the manner attempted.

Beyond this is the fact that the rider containing the two additional, names does not, in and of itself, purport to consent to anything; it precedes the consenting clause already executed and filed.

The persons whose names appear therein testify that they intended to consent; but that statute provides for “the consent in writing—executed by the owner of the premises — and acknowledged as deeds entitled to be recorded.” § 17, subd. 6.

A rider attached to an otherwise complete and duly executed will has been held not a part of the will. Matter of Fults, 42 App. Div. 593.

“Execute” is synonymous with “subscribe.” Cheney v. Cook, 7 Wis. 413, 423. To subscribe means to write one’s name beneath or at the end of an instrument. James v. Patten, 6 N. Y. 912; Commonwealth v. Barheight, 75 Mass. 113, 114; Stone v. Marvel, 45 N. H. 481; Davis v. Shields, 26 Wend. 356; McGovern v. Fleming, 12 Daly, 289, 290.

The statute as to conveyance of lands provides that “ a grant in fee, or of a freehold estate, must be subscribed by the person from whom the estate, or interest is intended to pass, or by his lawful agent” (Real Prop. I>aw, § 208) “ and when duly acknowledged or proved as therein provided the deed may be recorded. § 241.

Clearly this rider does not comply in letter or spirit with the Liquor Tax Law or the Real Property T^aw as to the execution of deeds of real estate so as to entitle them to be recorded.

My conclusion is that the certificate in question ought not f.o have been issued.  