
    Second Appellate Department,
    April, 1899.
    Reported. 40 App. Dlv. 46.
    In the Matter of the Petition of Henry H. Lyman, as State Commissioner of Excise, Appellant, for an Order Revoking and Canceling Liquor Tax Certificate No. 10,320, Issued to Malcom Brewing Company, Respondent. H. W. Michell, Special Deputy Commissioner of Excise for the County of Kings, Respondent.
    Revoking a liquor tax certificate—A sale of beer from kegs on baseball grounds, in addition to that sold in the barroom, considered not to require payment of an additional tax.
    Upon an application made to revoke a liquor" tax certificate for an alleged violation of section 11 of the Liquor Tax Law (Laws of 1896, chap. 112, as amd. by Laws of 1897, chap. 312) providing that “if there be more than one barroom or place on the premises * * * at which the traffic
    in liquors is carried on under any subdivision of this section a like additional tax is assessed for each such additional barroom.or place,” it appeared that the certificate in question authorized the defendant, a brewing company to sell liquor on certain baseball grounds, and that, in addition to a bar at the location named in the petition, kegs of beer were placed at other points upon such grounds when games were in progress, and that waiters would bring orders from spectators to the men in charge of the kegs, delivering checks for the beer taken by them, for which checks they were responsible, and collecting money for such sales from the customers.
    
      Held, that the sales of liquor so made by the waiters were to be considered as incidents to the main business carried on in the barroom and not as constituting the maintenance of a separate and independent place for the sale of liquor.
    
      Quaere, whether if the sale of liquor on the grounds were so disconnected with the business carried on in the barroom as to be beyond the permit of the license, the brewing company was responsible therefor, the business at the time being carried on by a^party to whom the company sold beer, who received the profits of the business and who had title to the liquor sold.
    Appeal by the petitioner, Henry H. Lyman, as State Commissioner of Excise, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 30th day of November, 1898, denying his application for an order revoking the liquor tax certificate issued by H. W. Michell, Special Deputy Commissioner of Excise for the county of Kings, to the Malcom Brewing Company.
    
      S. B. Mead, for the appellant.
    
      J. F. Bullwinkel, for the respondent Malcom Brewing Company.
   Cullen, J.:

The respondent, the Malcom Brewing Company, had a liquor tax certificate authorizing the sale of liquor on the Washington Park baseball grounds in the borough of Brooklyn. In the application for the license, the location of the bar was stated to be on the north side of Third street, 350 feet east of Third avenue. There was a bar on the premises at the location named, but when games were being played on the grounds, kegs of beer were placed at other locations; waiters would take the orders of spectators on the various stands through the grounds find bring these orders to men in charge of the kegs, who would furnish them glasses of beer to be delivered to the customers; the waiters on receiving the beer would give checks or tickets for the beer taken, for which they were held responsible, and would collect money for their sales from the customers. The petitioner claims that this mode of carrying on the sale of liquor was a violation of the Liquor Tax Law, and for such violation he seeks, under the provisions of section 28 of the statute (Laws of 1896, .chap. 112, as amd. by Laws of 1897, chap. 312), to revoke the respondent’s license.

It is very doubtful whether the Malcom Brewing Company, on the record before us, was responsible for the sale of liquor which is claimed to have been illegal. The business was carried on by one Harry M. Stevens, to whom the company sold beer and gave the use of the certificate. The sales were made entirely by Stevens or his agents, the profits of the business were his and the title to the liquor sold was in him. We do not see that any relation of agent or servant existed between Stevens and the company. Having permitted the use of the certificate by Stevens for the sale of liquor at the bar, or place specified in the certificate, it may be that, for any infraction of the law there committed, or committed in connection with the business there carried on by Stevens, the company would be responsible. But if the sale of liquor in the field was so disconnected with the business carried on in the barroom as to be beyond the permit of the license, it is questionable whether it would not be equally beyond the implied authority given by the company to Stevens, and solely the illegal act of Stevens himself.

However this may be, we are of opinion that no violation of the law was proved, nor any false statement in the application for the certificate shown. The bar was located correctly in the petition, and no other bar or place for the sale of liquor, in the proper sense of those terms, was maintained on the grounds. By subdivision 6, section 11 of the Liquor Tax Law, as amended in 1897, it is provided: “If there be more than one bar, room or place on the premises, car, steamboat, vessel, boat or barge, at which the traffic in liquors is carried on under any subdivision of this section, a like additional tax is assessed for each such additional bar, room or place.” The terms of this provision are very broad and sweeping; still they must be construed reasonably. By section 31 of the act, as amended, the keeper of a hotel may sell liquor to his guests with their meals or in their rooms, except between the hours of one o’clock and five o’clock in the morning, but not in the barroom or other similar room of such hotel. It will hardly be claimed that a certificate must be taken out for the dining room, or the rooms of the guests who are there served with liquor; nor can it be argued that the provision of law quoted gives hotels a special exemption from paying more than a single license fee. The only object of the provision is to take hotels out of the prohibitory clauses of the section which forbid the selling of liquor on Sundays and days of general or special election and the like. If it is construed as an affirmative grant of permission for a hotelkeeper to sell liquor to his guests, then it follows that he can at no time sell liquor to a guest in the barroom, though that place is open to the rest of the world for resort. There is also to be considered the case of restaurants (not hotels), which, when of any pretension or character, have their dining rooms or eating rooms separate from the barrooms. It is certainly customary to serve wines or liquors in the dining room with meals. There are many music or other gardens where liquor is sold. It would be unreasonable to hold that in no such place could a patron be served with beer, wine or liquor except in the barroom, unless additional certificates are taken out, for what — for each table? We concede that, under the law, if a second barroom, or place distinctively for the sale of liquor, is maintained, an additional tax certificate must be taken out to cover it. But where no other bar or place of the character is maintained, we think refreshments may be served by waiters to persons not in the barroom, without a violation of the law. Such practice seems to be contemplated by the statute itself. By subdivision 1, section 11, it is directed that a tax shall be assessed upon the business of trafficking in liquors to be drunk upon the premises where sold, or which are so drunk, whether in a hotel, restaurant, saloon, or in an outbuilding, yard or garden appertaining thereto or connected therewith, thus recognizing that liquor may be sold, or at least served, in connecting gardens.

It is plain that the delivery of beer to the waiters by the man in charge of the keg did not constitute the sale. The system adopted of requiring tickets or vouchers from the waiters was simply a mode of insuring a proper accounting for the money received by them. The sales in this case occurred when the waiters delivered the beer to the spectators on the grounds and received payment therefor. That tlmy got the beer from the keg ir. the field is of no more consequence than if they had taken it from the cellar. The sales so "made by the waiters should fairly be considered as mere incidents to the main business carried on in the barroom, and not as constituting the maintenance of a separate and independent place for the sale of liquor.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

All concurred.

Order affirmed, with ten dollars costs and disbursements.  