
    The People of the State of New York, Resp’ts, v. Charles Worsley et al., Commissioners of Excise of the Town of Wappinger, App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed June 25, 1888.)
    
    Commissioners of excise—Neglect of duty—When proved—Indictment.
    Where the commissioners of excise of a certain town failed entirely to discharge their official duty and ascertain the disability and want of accommodation of one to whom they issued and delivered a license to keep a hotel, Held, that conviction for neglect of duty would he sustained.
    The defendants, who were commissioners of excise for the town of Wappinger, were indicted at the January court of sessions for Dutchess county, in 1888, for having granted a license to Augustus Colter, of that town, to sell strong and spirituous liquors to be drank on his premises, when they well knew that he had not sufficient ability to keep an inn, tavern or hotel, nor the necessary accommodations to-entertain travelers, in violation of section 6 of the excise law of 1857.
    The place licensed was one room and a cellar in the basement of the building, the keeper of which also had a small room two stories above in the same building, but had no stables near, though he owned a barn, with a stable in it, a quarter of a mile away. His one room was a bar-room without anything in it except the usual bar-room furniture, and the room above it at one time had three cot beds in it. The signs and appearances on the outside of the building-indicated that it was a drinking saloon only. Each of the-defendants, in his testimony, admitted his thorough knowledge of, and familiarity with, the place.
    
      John Hackett, for resp’ts; John W. Bartrum, for app’lts.
   Dykman, J.

This is an appeal from a judgment of conviction upon an indictment for a misdemeanor.

The defendants were excise commissioners of the town of Wappinger, in Dutchess county, and they were indicted by the grand jury of that county for granting a license to one Colter, of their town, to sell strong and spirituous liquors to be drank on his premises when they well knew he had not sufficient ability to keep an inn, tavern or hotel, nor the-necessary accommodations to entertain travelers, in violation of the statute commonly called the excise law.

Upon the trial of the indictment at the oyer and terminer the testimony showed plainly that Colter, to whom the license was granted, had not the necessary accommodations for travelers such as the law contemplates, and did not keep a hotel in the legal sense of that term.

There was also sufficient evidence from which the jury might have found that the defendants failed entirely in the discharge of their official duty to ascertain the disability of Colter, and his want of accommodation before they issued and delivered his license.

It seems to be a plain case of neglect of duty, and the conviction should be affirmed.

Pratt, J., concurs; Barnard, P. J., not sitting.  