
    Matter of the Petition of William W. Farley, as State Commissioner of Excise, for an Order Revoking and Cancelling Liquor Tax Certificate No. 15,993, Issued to Andrew P. Kennah.
    (Supreme Court, Albany Special Term,
    October, 1911.)
    Intoxicating liquors — Revocation or forfeiture of license — Grounds for forfeiting license — Entrance, etc., to gambling room.
    Where the ground floor of a two-story building is occupied by the lessee of the entire building who conducts a saloon there, and a tenant of the second floor under a prior lease who continues as tenant and pays rent to the saloon-keeper maintains a gambling room on the second floor; and where the saloon-keeper and the proprietor of the gambling room have access to their respective premises through a common hallway which is also the only means of communication between the room used as a saloon and the saloon-keeper’s kitchen on the same floor, a violation of subdivision E of section 30 of the Liquor Tax Law is not established without some proof of actual communication between the saloon and the gambling room through the means of communication offered by the physical condition of the premises.
    Petition for an order revolting and cancelling a liquor tax certificate.
    Louis M. King, for petitioner.
    Peter A. Delaney, for respondent.
   Rudd, J.

The petition above shows the issuance, on September 15, 1910, of a liquor tax certificate, permitting Andrew P. Kennah to traffic in liquors at No. 23 Steuben street, Albany.

The petition asks for a revocation of the certificate for the reason that the certificate holder violated subdivision E of section 30 of the Liquor Tax Law, in that he suffered and permitted to exist an opening and means of entrance and passageway for persons and things between the room, and place where traffic in liquors was carried on and another room or place where gambling was suffered and permitted.

The petition specifies- certain dates when the illegal acts are alleged to have taken place. There is little in dispute as to the facts upon which the application is based. .

The case is different from the Fisher case, of which disposition has been made, for the reason that here the contention of-the petitioner is based, and must be'based, entirely upon the physical conditions which existed.

Concerning these conditions there is practically no dispute.

The" certificated premises consist of the ground óx first floor of premises located on the north side of Steuben street, Albany. The building is two stories in height. On the easterly side of the building is a hallway with an entrance directly from the street. In this hall is a flight of stairs leading to the floor above. In the rear of the hall, and beyond the foot of the flight of stairs, is a kitchen used by the certificate holder.

Across the flight of stairs, and about five or six steps from 'the bottom, is a door in which is what'is called a peep-hole.” On the second floor of the building at the head of the flight of stairs was a gambling room.

There is an entrance from the street on the westerly side of the building directly- into the certificated premises, or bar-room.

The bar extends almost the entire depth of the room along the westerly side.' At the north end of the bar-room is a doorway leading to a sitting-room, in which sitting-room there is partitioned off a coat room. From the sitting-room a doorway leads into the toilet-room, which toilet-room is partitioned off of'the north end of the hallway, and there is no entrance into the toilet-room from the hallway.

There is a doorway leading from the bar-room, or certificated premises, on the east side thereof, into the hall and near the foot of the flight of stairs leading to the second floor.

There is no dispute as to the fact that the gambling room did exist on the second floor of the.property. It also appears that -the second floor was leased to W. J. Schermerhorn, and used and occupied by him; -that the certificate holder, Kennah, had no interest in the use or occupation of the room, leased to Schermerhorn.

The petitioner relies entirely in asking for a revocation of the license upon the fact that there existed the door on the easterly side of the certificated premises leading into the hallway in which the flight of stairs was, which went to the floor above.

There is no proof that the certificate holder had any connection with the gambling'room above, no evidence that liquors were sent from the bar-room and served in the gambling room.

When the special agents of the Excise Department visited the premises on the occasion made the basis for the allegations in the petition herein, they found a man on the upper, or inside of the door across the stairs, watching at the peephole; and the man demanded of the special agents 'their names, or information as to whom they knew, -if anybody. The agents gave the name of a man, which apparently they assumed would be sufficient to admit them, and the man on guard refused to admit them, making the remark that there was nothing doing. Later in the evening of the same day, the special agents found the door unlocked across the stair(¡ase, and passing through went into the gambling room.

From the saloon, or certificated premises, patrons could go out of the doorwayj which is in question here, into the hall, thence directly into Steuben street, and thus, apparently to the people on -the outside, not come from the saloon. Entrance could be had by patrons of the saloon who desired to go into the saloon through a door which apparently did not lead directly into the saloon.

Kennah, the certificate holder, leased the entire building. Schermerhorn had been in occupation of the rooms on the second floor before Kennah leased the property. He continued there as tenant, paying to Kennah rent.

The door across the stairway was 'there when the certificate holder leased the premises. He did not have a key to it. Mr. Schermerhorn had the key. The front door of the hall leading out onto Steuben street, on the ground floor, was left open. Access could be had to the floor above from the street without going into the certificated premises.

Articles of food cooked in the kitchen in the rear of the hallway- on the same floor with the saloon and beyond the stairway were and could only be taken in to the saloon through the hall and the doorway leading from the hall into the saloon.

Ho proof supplements the physical situation, which alone is not sufficient under the law to sustain the petition.

There is no evidence in the case to show that there existed, between the certificate holder and his tenant such a relation through his business, or otherwise, by which it can be held that he was guilty of a violation of the law under which this application is made.

It does not appear that he suffered or permitted by the existence of the doorway which led- from the certificated premises into the hall an entrance or a passageway between his saloon and the gambling room.

The case is easily to be distinguished, it seems, from the Fisher case, and the situation, as it was, cannot, it seems to me, under the law, be- construed to be a violation of the particular section of the law which is sought by the petitioner to be invoked.

The petition is, therefore, denied. An order may be entered denying the petition for the revocation of the license, with costs.

Petition denied, with costs.  