
    Supreme Court, Kings Special Term,
    November, 1898.
    Reported. 25 Misc. 217.
    The People ex rel. Ernst Ochs, Relator, v. Henry H. Lyman, as Commissioner, etc., Respondent.
    Liquor Tax Law—A conviction does not cut off the right to a rebate for the tax of the ensuing year—Procedure to procure rebate.
    The conviction, on April 26, 1898, of the holder of a liquor tax certificate of the offense of selling liquor on Sunday, does not affect the right of his assignee to recover the rebate of a tax paid, on April 25, 1898, by the same person for a new certificate, which would not become operative until May 1, 1898, and which was surrendered at the earliest opportunity, no business having been done under it.
    Proper method of procuring the rebate discussed.
    Motion for a peremptory writ of mandamus to require the respondent to pay to the relator, as assignee of the liquor tax certificate, the full rebate of the tax paid by one Joseph Palevski therefor on April 25, 1898, and which authorized Palevski to traffic in liquors for the year commencing May 1, 1898.
    The respondent opposed on the ground that it appeared from the motion papers that on April 26, 1898, Palevski was convicted of the offense of selling liquor on Sunday.
    For further facts, see opinion.
    
      Guggenheimer, Untermyer & Marshall, for relator.
    Mead & Stranahan, for respondent.
   Garretson, J.

I am of the opinion that the relator (a corporation) is entitled to the rebate of the tax paid for the liquor tax certificate issued to its assignor, Joseph Palevski, by the county treasurer of Queens county for the year from May 1,1898, to May 1, 1899.

The conviction of Palevski was had on April 26,1898, and while he was trafficking in liquors under a certificate issued for the year commencing May 1, 1897. The conviction worked a forfeiture of the certificate last mentioned, and deprived him of all rights and privileges thereunder and of any right to the rebate of the tax paid thereon. The Liquor Tax Law, § 34, subd. 2, as amended by chap. 312, Laws of 1897.

The certificate of 1898 was not in force at the date of the conviction. It did not become operative as a license until May 1, 1898. No business was carried on thereunder, and it was surrendered to the county treasurer on May 2d, the first day of the month being Sunday. Besides, the tax, although paid on April 25th, the date of its issuance, was not assessed until May 1st. Id., § 12.

A careful reading of the law discloses no warrant for the contention of the respondent, that the right to the rebate under the certificate of 1898, is forfeited by the conviction of Palevski while the certificate of 1897 was in force. The conviction required the refusal of a certificate for the year from May 1, 1898, only, and such course would make necessary a return of the tax paid upon the appropriation therefor.

The penal provisions of the statute must be strictly construed and the courts will not bring about a forfeiture of property rights unless the language of the statute is clear and unequivocal. While the relator may not have peremptory writ of mandamus directing the respondent to pay the rebate to it, the general words of the notice of motion “ for such other and further relief in the premises as may be just,” might permit the issuance of the writ to require the respondent to prepare the two orders that the county treasurer pay the rebate in the manner mentioned in section 25, had a proper case been presented by the relator.

It does not appear from the petition that the county treasurer has made the duplicate receipts required to be made by that section, and has transmitted one of them, with the tax certificate and petition for cancellation of the certificate, to the respondent. Indeed, the contrary is inferable from the statements of fact therein set forth.

The performance of these acts by the county treasurer is a prerequisite to the making by the respondent of the orders for such payment, and for that reason the motion must be denied.

Unless with the consent and at the instance of the respondent the county treasurer shall forthwith transmit such duplicate receipt and papers to the respondent, no relief can be afforded the petitioner in this proceeding, and it must have recourse in the first instance to its appropriate remedy against the county treasurer, to compel compliance with the statute on his part.

The motion for a peremptory writ of mandamus is denied, with $30 costs.

Motion denied, with $30 costs.  