
    Matter of the Petition of Louis P. Rupp, John T. Bauer, and William L. Searles, as Executors and Trustees of the Estate of Adolph Rupp, Deceased, for an Order Revoking and Canceling Liquor Tax Certificate No. 6214, Issued to Charles E. King, Jr., for Premises at 433 Ninth Avenue.
    (Supreme Court, New York Special Term,
    April, 1907.)
    Intoxicating liquors: Granting license — Consent of property owners; Prohibition of traffic in certain localities; Proximity of school or church — Prohibition within certain distance of dwelling house; Revocation or forfeiture of license — Who may petition therefor.
    An unfinished and unoccupied building designed for and intended to be occupied exclusively as a church is not a building occupied exclusively as a church; and a negative answer to the question, contained in an application for a liquor tax license, whether the place in which the traffic in liquors is to he carried on is within two hundred feet of a building so occupied is not a false answer to the question.
    Where access to a rear building on a lot is through an independent hallway, leading from the street through the front building to the yard between the front and rear buildings, the entrance from the street into such hallway is not the entrance to the rear building which the statute contemplates, hut the entrance contemplated by the statute is the door or physical opening in the wall leading from the yard into the rear building; and, where this entrance is within the prescribed distance, the consent of the owner of the building or his agent is required.
    
      One who is merely a lessee of a building, though he represents the owner as a general real estate agent and is interested in any profits that might be realized upon a sale of the property, is not the owner or the duly authorized agent of the owner within the meaning of the Liquor Tax Law.
    Testamentary trustees in whom the legal title to the testator’s real estate ’is vested are taxpayers within the meaning of the Liquor Tax Law and as such authorized to petition for the revocation of a liquor tax certificate.
    Proceeding .for the revocation, and. cancellation of a liquor tax certificate.
    Strong & Cadwalader, for petitioners.
    Charles E. Mahoney, for respondent.
   Leventritt, J.

On or about January 19, 1907, the respondent filed his verified application for a license authorizing him to traffic in liquors at premises 433 Ninth avenue, which is also 401 West Thirty-fourth street, New York city; and, thereupon, the application having been found to be correct in form, and no reason appearing on the face thereof why a license should not be granted, a liquor tax certificate was issued for the purposes mentioned.

On or about March 16, 1907, the petitioners, as executors and trustees under the will of Adolph Rupp who died February 14, 1907, seized of premises 406 West Thirty-fourth street, and whose will was admitted to probate March 29, 1907, instituted this proceeding, as resident taxpayers, for the revocation of respondent’s license, alleging that the respondent made false answers to the following questions in the application:

“ 9. Does the applicant intend to traffic in liquors under the certificate applied for in any building, yard, booth or other place, which is on the same street or avenue and within two hundred feet of a building occupied exclusively as a church or schoolhouse ? ”
To which respondent answered No.”
“ 13. How many buildings are there occupied exclusively as dwellings, the nearest entrance to which is within two hundred feet, measured in a straight line, of the nearest entrance to the. premises where the traffic in liquors is intended to be carried on ? ”
To which respondent answered “ 4.”
“ 14. Has the applicant attached hereto a consent in writing that such traffic in liquors be so carried on in said premises during the term herein stated, executed by the owner or owners, or by the duly authorized agent or agents of such owner or owners, of at least two-thirds of the total number of buildings occupied exclusively for dwellings, the nearest entrance of each of which is within two hundred feet, measured in a straight line, of the nearest entrance to the premises described herein as those in which traffic in liquor is to be carried on, and acknowledged as are deeds entitled to be recorded ? ”
To which the respondent answered “ Yes.”

As to question nine, the petitioners allege that at the time the application statement was filed there was and now is at Nos. 412 to 420 West Thirty-fourth street, concededly within the prescribed radius, a building designed for and intended to be' occupied exclusively as a church.” This allegation is supported by the evidence, but the proof thereof does not in any degree negative the truth of the respondent’s statement. He was required by statute to state whether the contemplated traffic would be within 200 feet of a building occupied exclusively as a church. That the building in question was, when the application was filed, and now is in the hands of the builders in an unfinished condition, and not only unoccupied but unfit for occupancy, is undisputed. Under the statute, occupancy and not contemplated occupancy fixes the character of the building. The respondent’s answer to this question was, therefore, a proper one.

The answer to question thirteen was also correctly stated. There were and are but four buildings occupied exclusively as dwellings. This is now conceded.

This brings us to the answer to question fourteen. The respondent filed consents for Nos. 365 and 403 West Thirty-fourth street and 416 West Thirty-fifth street, front and rear. He concedes, however, that in the list of dwellings the front building on premises 4-16 West Thirty-fifth street should be excluded as not within the prohibited distance and that the dwelling on premises 406 West Thirty-fourth street, for which no consent was filed, should be included. The consent for No. 416 West Thirty-fifth street rear was signed “ Henry E. Hovey by Folsom Bros. Duly authorized agents, By Samuel D. Folsom.” Samuel D. Folsom testified that he was the lessee of the premises; that he represented the. owner, Henry E. Hovey, as general real estate agent; that he was interested in any profits which might be realized by the owner on a sale of the property; that he was not authorized to sign the consent in question and that, upon being requested by the respondent to obtain the consent of the owner, he refused to do so. It cannot be successfully urged that such a consent satisfies the statute which requires the consent of the owner or of his duly authorized agent. That Folsom’s consent was without authority cannot be questioned. The respondent’s contention that Folsom’s interest in the premises was sufficient to justify his act is without merit. Folsom was lessee and his interest extended only to participation in profits in the event of a sale. He was in no sense an owner, of the premises or of any part thereof.

But the respondent maintains that, conceding this consent to be void, he has complied with the statute since the entrance to the rear building of No. 416 West Thirty-fifth street is not within 200 feet’of the nearest entrance to his saloon; that, therefore, there -are but three dwellings within the prohibited radius, for two of which he has filed consents.

The rear building of 416 West Thirty-fifth street is reached through an independent hallway leading from the street through the front building to the yard, between the front and rear buildings. The respondent contends that the entrance from the street into this hallway in the front building is the entrance to the rear building which the statute contemplates and which is, admittedly, without the statutory limit. This contention is unfounded.

' Although the rear 'building is accessible only by means of the hallway mentioned, the entrance contemplated by the statute is the door or physical opening in the wall leading from the yard into the rear building. While the- hallway affords an avenue through which the building may be reached, the door or opening in the wall of the building affords the only means of access into the building itself. This entrance is within 200 feet from the nearest entrance to the respondent’s saloon.

The respondent is, therefore, able to avail himself of but two legally executed consents, whereas the statutory requirement is three, there being four dwellings within the limited radius.

But the respondent urges that, even conceding the failure of his application to furnish a sufficient basis for his certificate, the petitioners are not qualified to institute these proceedings as they are not taxpayers in that they.have neither paid nor been assessed for taxes as executors and trustees.

The petitioners are executors and trustees under the will of Adolph Rupp who died seized of premises No. 406 West Thirty-fourth street. Upon his death the legal title to these premises vested under his will in the petitioners in their representative capacity for the purpose of the trust created by their testator. Both under the will and by operation of law they are liable for the payment of taxes. They are, therefore, within the meaning of the statute, taxpayers.

It follows that the application must be granted.

Application granted.  