
    Fourth Appellate Department,
    April, 1904.
    Reported. 94 App. Div. 609.
    In the Matter of the Petition of Patrick W. Cullinan, as State Commissioner of Excise, Appellant, for an Order Revoking and Canceling Liquor Tax Certificate No. 12,077, Issued to Adam Herrmann, Respondent.
    
      William C. Tan. Loon, for appellant.
    An archway between the barroom and a rear sitting room from which a curtain is suspended is an open and unlocked door. (Liquor Tax Law, § 31, clause g.)
    The testimony of the petitioner’s special agents should be weighed, not counted, as against those of alleged workmen making repairs in the place who acknowledge swiping considerable beer behind the back of the' bartender. (People v. Lyman, 20 Misc. 80, affd. 30 App. Div. 135, and 157 N. Y. 368; Cullinan v. Trolley Club, 65 App. Div. 202; People v. Roosevelt, 2 App. Div. 498; In re Lyman v. Veeder, 29 Misc. 425.)
    
      
      Hamilton Ward, Jr., for respondent.
    Mere evidence that door was left open especially for the ingress and egress of workmen engaged in making repairs, will not justify revocation of license. (Matter of Cullinan, 75 App. Div. 301; Matter of Henry, 56 App. Div. 268; People v. Ryan, 96 App. Div. 525.)
   The special agents were mistaken as to the place of sale, in their identification of the certificate holder, and if they did enter the barroom were instantly ejected.

Order reversed, with costs, and application of petitioner granted, with twenty-five dollars costs and taxable disbursements, revoking and canceling the liquor tax certificate issued to the holder, Adam Herrmann. Held, that by the preponderance of the evidence it is established that said certificate holder wrongfully and unlawfully had opened and unlocked the door and entrance leading into his barroom upon the day in question; and also that upon said day said certificate holder personally by his agents and servants did wrongfully and unlawfully traffic in liquor.

All concurred except Williams, J., who dissented.  