
    Jerome D. Flint, as Overseer of the Town of Cohocton, County of Steuben, Resp’t, v. Shepard Rowell, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 14, 1888.)
    
    Excise law—Signing of license befobe the action of the boabd—Effect WHEN SAME IS GEANTED.
    The license in due form h: d heen prepared and signed by two of the commissioners prior to the action of the board upon the application and delivery of the same to the defendant. At a meeting of the board the license_wgs granted, Held, that the license was as effective, as evidence of the action of the board, as if it had been actually prepared and signed by the commissioners subsequent to the action of the board voting a license.
    Motion by the defendant for a new trial, founded on exceptions taken at the circuit and ordered to be heard here in the first instance. The action was to recover penalties for selling liquors without a license, and the court ordered a verdict for the sum of $1,000. The defense is, that he had a license, duly granted by the excise commissioners of the town. All the commissioners met on the first Monday of May, 1887, and organized by electing a president, secretary and treasurer. On the preceding Saturday the defendant prepared an application in writing, which he signed and verified, and procured the certificate of the requisite number of citizens requesting that a license be granted to the defendant. A bond was also prepared, with two sureties, in due form of law, and all these papers were, on that day, placed in the hands of one of the commissioners. On the same day a license in due form, was made out and signed by two of the commissioners, Stein and Woodworth, who delivered the same, on that day, into the hands of the defendant’s attorney, with instructions not to deliver to the defendant unless the license was granted on the application. All the papers bear date the second day of May, which was the day on which the board convened. After the board organized, the application of the defendant, the certificate of the citizens, together with the bond, were presented to the board by one of the commissioners and the propriety of granting a tícense to the defendant was brought up and considered.
    Two of the commissioners, Mr. Stein and Mr. Wood-worth, expressed themselves in favor of granting a license, and the other commissioner, Mr. Moulton, expressed himself as opposed. The question as to what the amount of the fee which should be demanded was then brought before the board, presented and considered, and each of the commissioners expressed themselves upon that subject, and the sum of fifty dollars was agreed upon. Previous to this time Mr. Rowell had placed fifty dollars in the hands of one of the commissioners to be used if the license should be granted. Mr. Moulton, one of the commissioners, and who acted as clerk, made a memorandum of the proceedings of the meeting, and, after stating therein the mode and manner in which the board was organized, and who were chosen officers, this entry was made on the minutes, viz.:
    “ An application for a hotel license presented by Shepard Rowell and granted. License fee fifty dollars.
    “R. P. MOULTON, Clerk.”
    
    These minutes were filed with the town clerk, together with the petition, certificate and bond. There was endorsed upon the bond an approval which was signed by each of the commissioners. The commissioners paid the license fee of fifty dollars, to the supervisor of the town. At the time the board acted on the application the license signed on the previous Saturday was in the hands of Mr. Searl, the defendant’s attorney. After the action of the board on the question of granting the license was concluded the commissioners who voted in favor of granting the license, stated that they had previously signed a license, to be used, if one was granted, and Mr. Moulton, the other commissioner, was asked if he would sign it if it was brought before the board, and he declared that he would not. With the consent and by the direction of two of the commissioners, Stein and Woodworth, Mr. Searl, who had the custody of the license, on the same day delivered it to the defendant. At the close of the evidence the defendant’s counsel asked to go to the jury upon the question, whether the board, by a majority, voted, determined and decided to grant a Ecense to the defendant, which was refused, and the defendant excepted.
    
      M. Bumsey Miller, for def’t; W. Martin Jones, for pl’ff.
   Barker, P. J.

—The board of commissioners, on the day designated by the statute, convened and duly organized. All were present and participated in the proceedings, which resulted in a majority vote in favor of granting a license to the defendant. He paid the fee fixed by the board, which they paid over to the supervisors of the town. Every requirement of the statute was fully complied with. Laws of 1870, chap. 175; Laws of 1878, chap. 549; Laws of 1874, chap. 444. The circumstance of the papers signed, are prepared previous to the meeting of the board did not invalidate the same. It is customary practice for applicants for a license to prepare the necessary papers before the board convenes to be used, in case a license is granted. Preparing, signing and _ delivering a license after one has been granted is a ministerial act. In this case the license, in due form, had been prepared and signed by two of the commissioners prior to the action of the board upon the application and the delivery of the same to the defendant, as evidence of the action of the board, was as effective as if it had been actually prepared and signed by two of the commissioners subsequent to the action of the board voting a license. Powell v. Tuttle, 3 Com., 400.

There was no dispute, as to what transpired after the board convened, as all the commissioners were called as witnesses and they substantially agreed in their statements. If there could be any doubt on the question whether a majority of the board voted to grant a license to the defendant, there was ample evidence making a case for the consideration of the jury.

Verdict set aside. New trial granted,, with costs to abide event.

All concur.  