
    In the Matter of the Petition of Maynard N. Clement, as State Commissioner of Excise, Appellant, for an Order Revoking and Canceling Liquor Tax Certificate No. 14,648, Issued to John Ulinski, Respondent.
    Fourth Department, ■
    May 1, 1907.
    Intoxicating • liquors — maintenance of slot machine by cotenant — liquor tax certificate not revoked.
    In a proceeding to revoke a liquor tax certificate it appeared that the defendant was the lessee of a single room in the "building; that an adjoining, room containing a slot machine was leased by another person in no way connected with the defendant in business; that the defendant had complained .to the owner of the slot machine and to the landlord asking that it be removed.
    
      Held, that the defendant’s certificate-should not be revoked; but that the decision . . is not a precedent in cases where the premises are similarly located but where • there is evidence of connivance and collusion between the parties to carry on gambling. '
    KWse and Robson, JJ., dissented, with opinion.
    Appeal by the petitioner, Maynard H. Clement, as State Commissioner of Excise, from an order of the Supreme Court, made at , the Erie Special Term and entered in the office of the clerk of the county of Erie on the 8th day of June, 1906, denying his motion for an order revoking liquor tax certificate Ho. 14,648 .thereto- . fore issued to the respondent and dismissing the above-entitled proceedings. ; •
    
      H. Walter Lee an&Daniel A. Heed, for the appellant.
    
      Henry W. Killeen, for the respondent.
   Williams, J.:

The order should be affirmed, with-costs.

.The certificate was issued April 28, 1905, to expire April 30, 1906, authorizing the defendant to traffic in liquor .at premises situate on the southwest corner of Wasson avenue.and Iron street, Lachawanna, Erie county, H. Y; The petitioner claimed that on October ' 13,1905, the defendant permitted gambling in said premises by means of a nickel slot machine. The defendant denied this. .The evidence was taken before a referee and reported to the court, and the court made the order appealed from based upon such evidence. It appeared by the evidence that the defendant’s brother owned the building in which defendant carried on his business. The defendant leased the front room on the first floor, about twenty-six feet square, for his business, and occupied no other part of the building. Just back of this room and adjoining it was anothel* room leased by one Smiegel and occupied for a billiard room wliich-he conducted. Other parts of the building were leased and occupied by other parties. There was a partition between the two rooms, and a door in such partition ■six feet wide. There was a door leading from defendant’s room out towards the street, and two doors from the back room, one at the side leading out .doors, and the other at the back leading to other parts of the building. The door in the partition between the two rooms was usually left open._ Smiegel leased the back room from June 25, 1905. Neither of these two men was interested in the business of the other, or. in the room rented by him. Their business was entirely separate, except that people playing billiards ordered-drinks from defendant’s room when they desired. The slot machine was put in the back of the billiard room by Smiegel about October . 5, 1905. As soon as defendant saw the slot machine there he told Smiegel it was unlawful and he must take it out, and if he did not, he would tell the owner of the building and he would put it out. Smiegel did not take the machine out, and defendant complained to the owner of the building about it, who spoke to Smiegel, and he said he would take it out. The machine was still there on the 13th of October, 1905, when the agents of the State Excise Commissioner went there and used it, and upon their evidence the proceeding was based and the revocation of the license sought to be obtained. N o claim has been made that there was any collusion between defendant' and Smiegel with reference to the maintenance of the machine. From the first the defendant insisted it should be taken' out—• we desire this to be distinctly, understood. The Special Term justice, in his opinion, expressly says: No question of collusion or bad .faith has been suggested in this matter,” and the concession was made by counsel in this court and on the argument-to the same effect. There is no evidence in the record tending to show collusion or fraud or bad faith on defendant’s part. The defendant always claimed,.and now claims, that he tried to have the machine taken out when it was first put in, and did all he. could to procure it to be done, and that he had no power himself to remove it or prevent .its maintenance and use by Smiegel. It. will be seen that, while in the petition it was claimed that the defendant .permitted gambling in his premises,, the evidence .'showed ¡that the gambling was in the premises occupied by Smiegel, and the license was sought to be revoked finally upon the claim that defendant suffered and permitted the gambling, to he carried on in a.plaee appertaining to or connected with his premises. The matter was disposed of at Special Term upon the holding that, even though the, place where the gambling was carried on might he regarded as one appertaining to or connected with the defendant’s premises, still the defendant did, not suffer or permit it to be maintained there, and the case was not one covered' by the statute, In this conclusion we concur with the Special Term upon the .grounds very fully set forth in the opinion there given. We would not regard it necessary to add any opinion of our own, except that we want to make it entirely clear that our affirmance of this order is, not to be regarded, as a precedent in cases where premises are located as these .are, but where there is connivance and- collusion between the parties to maintain and cai’ry on the gambling. In such case there would be a violation of the statute and the license should he revoked. That element con- ■ cededly does not exist in the present case, and we are deciding tMscase in view of the conditions here existing and not establishing a precedent for any -other different case.

All concurred, except Ebuse and Robson, JJ., who dissented in' an opinion by Ebuse, J.

Kruse, J.

(dissenting):

As I view this case it presents' a plain, but unsuccessful attempt upon the part of the licensee, whose liquor tax certificate the State Commissioner of Excise seeks to have revoked,, to evade the provisions of the Liquor Tax Law relating to gambling. That law provides:

“Eo corporation, association, copartnership, or person, who, as owner or agent, shall suffer or permit any gambling to be done in. the place designated by the liquor tax certificate as that in. which the traffic in liquors is to be carried on, or in any yard, booth, garden or any other place appertaining thereto or connected therewith, or suffer or permit, such premises to become disorderly, or carries on or permits to be carried on or is interested in any traffic, business or occupation, the carrying on of which is a violation of law,” shall traffic in liquors. (Liquor Tax Law [Laws of 1896, chap. 112], § 23, subd. 7, as amd. by Laws of 1900, chap. 367, and Laws of 1905, chap. 680.) An applicant for a liquor tax certificate is also required to sign and swear to a statement containing among other things : “ The premises where such business is to be carried on, stating the street and number, if the premises have a street and number, and otherwise such- apt description as will reasonably indicate the locality thereof, and also the specific location on the premises of. the bar or place at which liquors are to be sold.” (Liquor Tax Law, § 17, subd.- 3, as amd'. by Laws of 1897, chap. 3!2.)

The petition in this proceeding states that the applicant presented a verified statement, under subdivision 1 of section 11 of the Liquor Tax Law, relative to the traffic in liquors by the -applicant at premises situated on the southwest corner of Wasson avenue and Iron street, Lackawanna, Erie county, X. Y. What other facts were set forth in the statement does not appear ; the statement itself is not contained in the record. The petition further alleges that the tax was paid and the liquor tax certificate issued, designating the place where the traffic in liquor was to be carried on thereunder, as specified in the application statement. These allegations are not denied by the answer.

It appears by the evidence that the building in which the liquor business was carried on was owned by the brother of the licensee. There was a pool room back of the barroom, and for at least a part of the time while the gambling machine was in the pool room, the door in the side street leading into the pool room was permanently closed, so that customers of Jhe pool room were required t.o go through the barroom.' The barroom proper was twenty-six feet square. While there was a partition between the pool room and the barroom, "there was. an open archway in the middle of the .partition making practically one room. The archway, was six feet wide with ten feet of partition on • ea.cli side. There were sliding doors • but they were very" seldom • closed. The licensee himself testified that somebody might possibly by mistake or in fun shut, themas a rule they were not closed. The gambling machine was • placed in the pool room nearly opposite the archway. It could be seen from the liar, and persons went back and forth patronizing the bar, pool tables and gambling machine. The licensee claims that he was not interested in the pool room business and that he had no control over" the pool room; that his brother leased to- him only the barroom; lie admitted, however, that Smiegel, the man who, as he claims; ran the pool room and who- tended bar for him when he was not there, took drinks to customers in the pool room, but denied that he personally ever served drinks'in the pool room; Upon that subject, he testified: Q. Sometimes your customers would go into the pool room and- watch the people playing pool, would they not ? A. Yes, sir. Q. And- sometimes you would- serve them cigars and drinks -in the pool room ? A. I never took any drink there. Whenever they got through playing" and wanted a drink, they. - would call for it, and the one who was running the pool room would come to me and pay for the drinks and take the drinks over to them. Q. And ordinarily that was Smiegel, wa'sn’t" it? A. Yes, sir. Q. And Smiegel frequently came and got drinks and carried them to the customers iri and during the daytime in October last? A. Yes, sir.” •

Whether this pool room is to be regarded as a part of the barroom or not, I have no doubt that the licensee had the legal right Under his liquor tax certificate to serve his customers in the pool room, and it was so used and a part of the licensed premises.

It is true that the licensee testified that he complained of the use of the machine and demanded that it-be taken out, but this was not . sufficient to absolve him from’ the consequences of its being used, and, besides, I am not persuaded that he desired or expected that the machine would be removed and the gambling operations cease. It would have been an easy matter for him to have closed the doors and kept them closed and stop the serving of liquors in the 'pool room. ' "

It is, however, éarnestly contended on his part that since the licensee had a lease of only twenty-six feet square where ,the bar was located, lie had no control over the pool room, and that, therefore, he was not responsible for the gambling .which was done in the pool room, and so it is claimed that he did not permit or suffer the gambling. This seems to have been the view of the learned justice at Special Term. It does not seem to me that a licensee can thus absolve himself from responsibility for the premises becoming disorderly. If this were permissible the licensee might have taken a lease of one end of liis barroom sufficient for the bar and disclaim any responsibility for what occurred in any part of the room away ■from the. bar. He might even refrain from acquiring any right to the room or premises save that of selling liquor over the bar, leaving the room to be used and occupied by others for other purposes, and thus escape the consequences Which he would otherwise" incur. If persons who traffic in intoxicating liquors may thus relieve themselves from responsibility, it affords an easy way of evading the provisions- of the Liquor Tax Law against gambling and other disorderly practices being.carried on in connection with that business, and practically nullifies and makes ineffective that salutary provision! "

I think that the order should be reversed and the liquor " tax; certificate revoked and canceled.

Hobson, J., concurred.

Order affirmed, "with costs. 
      
       See Liquor Tax Law, § 11, suM. 1, as amd. by Laws of 1903, chap. 115.— [Rep.
     