
    THE MAYOR, &c. OF THE CITY OF NEW YORK a. MASON.
    
      New York Common Pleas;
    
    
      General Term,
    
    
      March, 1855.
    Distbiot Ooubts.—Pleadings and Pbaotice.—Licenses.
    A justice of a district court has no authority to entertain a motion to strike out a complaint or answer, either in whole or in part.
    The fact that the commissioners of excise for a particular ward or district refuse to license any persons to sell spirituous liquors, does not justify any person in selling them without a license.
    Although a non-suit applied for on account of a defect in proof, might properly have been granted, yet if either party in the course of the trial supplies the proof which was before wanting, the objection is obviated.
    In a suit for the statute penalty for selling spirituous liquors without a license, the burden of proof is on the defendant to show that he had a license.
    
      If a complaint in a justice’s or district court, is not sufficiently certain and explicit, the defendant’s only remedy is by demurrer.
    The proper practice in the district courts of the city of New York in respect to summoning, imptmneling and challenging jurors, defined.
    Appeal from a judgment of the District Court for the third judicial district of the city of Hew York.
    This was an action to recover the statute penalty for selling liquor without a license, alleged to have been incurred by the defendant.
    The defendant by answer averred that he kept a public victualing house, in the ninth ward; that he was a citizen of good moral character, and that the commissioners of excise for the ninth ward, had refused to discharge the duty of granting licenses, had made public announcement that they would grant none, and had refused to grant an application for license made by defendant, &c. &c. The plaintiff’s counsel moved to strike out these allegations from the answer, and the motion was granted.
    The cause then came on to be tried, and resulted in verdict and judgment for the plaintiff; from which defendant appealed. The important grounds of appeal appear in the opinion.
    
      A. D. Bussell, for appellant.
    
      J. B. Haskins, for respondents.
   Woodruff, J.

The present is an action brought to recover the penalty given by statute for the sale, by retail, of spirituous liquors, to be drunk in the house of the defendant, he not being licensed according to law. (Sess. Laws, 1824, ch. 215, p. 256 ; amended, see Sess. Laws, 1827, ch. 280, p. 307).

Humerous objections to the rulings of the court below, were raised on the trial, and also to the testimony received in evidence, and no less than twenty errors are alleged in the notice of appeal, as grounds of reversal. But the defendant’s counsel, on the argument of the appeal, urges very few of these objections ; and as to those which the counsel appear to have abandoned, it will suffice to say that we think no error was committed in those particulars, which warrants a reversal of the judgment.

I. 11 is however, proper that we should say, that in our opinion, the justice had no authority to strike out one of the defences set up by the defendant in his answer on motion. The pleadings in the district courts are governed by section 64 of the Code of Procedure ; and a demurrer is the only proper mode of raising an objection to a defence as insufficient. Upon such a demurrer the court may order an amendment; and if the party neglects or refuses to make such amendment as will render the pleadings sufficient, the defective pleading may be disregarded on the trial. (Sub. 6 and 7). But the justice has no authority to entertain a motion to strike out a complaint or answer, either in whole or in part. No such authority is expressly given to him, and he can take no such power by implication. And it is manifest that the exercise of such a power is inconsistent with the provisions of the subdivisions of the 64th section ab.ove referred to. By those provisions, it is made his duty to require an amendment, when he is of opinion that the objection to the sufficiency of the complaint or answer is well founded ; and yet, by granting a motion to strike out, he violates this distinct provision.

If it be said that he may, after striking out a defence, suffer the party to amend, the answer is, that this is not in accordance with the course of proceeding prescribed for justices’ courts.

But it does not follow that in this particular case, the judgment should be reversed upon that ground. If it appear that the matter set up as one of the defences, and so struck out, constituted no defence at all, and was so radically insufficient that no amendment could have made it a good defence, then, although we deny the power of the justice to grant the motion, and disapprove of his order striking out the so called defence, we may and ought to say that no injustice was done; the erroneous order did not and could not legally affect the result, and furnishes no ground for a reversal of the judgment.

In this we by no means design to sanction the practice; on the contrary, we regard such a departure from the prescribed course of proceeding in those courts, as so far erroneous, that we hesitate, in overlooking the error, and we think that it. must be very clear that no injustice has been sustained in consequence, or we must reverse the judgment.

•Another reason, however, exists in the present case for disregarding the error in question : all the matters averred in that part of the answer which was struck out, were given in evidence by the defendant, and became the subject of a distinct, ruling upon their sufficiency as a defence, irrespective of the then state of the pleadings.

TI. The first ground now urged by the counsel for the appellant, embraces the very question raised by the defence so struck out, and in respect to which the evidence of the facts was afterward received, viz: The appellant was the keeper of an inn or tavern, and as such was licensed to sell spirituous liquors, in the year 1853. His license expired on the first of Hay, 1854. He then applied for a further license, which he failed to obtain, and there was some evidence that the officers in whom the power to grant licenses for the ward or district in. which the defendant resided, refused to grant any licenses-whatever in their ward.

Assuming these facts, it is argued that this was a neglect of duty on the part of those officers, for which they might have been indicted; and that such neglect of duty operated as a general license to all persons whomsoever residing in the ward, to keep an inn, and sell such liquors, and especially all persons, citizens of the Hnited States, possessing a good moral character, residing in such ward; and even if it did not operate as such general license, the defendant having been licensed down to the first of May, was relieved from the necessity of procuring a further license, but might continue to sell notwithstanding the term of his license had expired—the neglect of duty by the officers aforesaid thus operating as an extension of his term.

It seems to me that the mere statement of these propositions,, shows their unsoundness. They seem to proceed upon a theory that the defendant and the commissioners of excise stand to-each other in the relation of contracting parties, between whom the failure of performance by one, relieves the other from the-obligations assumed 'by him ; that the commissioners having. refused to give the defendant a license, have no right to complain that he has no license.

The effect of such reasoning, is this: Commissioners, by neglecting their dnty, (if a refusal to license the defendants, was a neglect of duty), may, at their pleasure, repeal or abrogate a law of the State. If the persons who in any district may for the time being be commissioners of excise, should deem it expedient to license everybody, they may practically do so by refusing to license anybody. Such a proposition hardly needs confutation.

The law of the State is explicit and unqualified, that every person who shall sell by retail, &c., &c., “without being licensed according to law” “shall forfeit and pay, &c.” Being licensed “ according to law,” means licensed in the manner prescribed in the act. Row it is not in the power of commissioners of the excise, or of any other subordinate tribunal ■or officers, to abrogate the statute. Its provisions may be disregarded—the commissioners may even neglect their duties; but the statute will nevertheless stand, and if no person is licensed, then whoever sells, does so “without being licensed,” .and incurs the penalty, and it seems to me that the proposition that when no one is licensed, all are licensed, is too novel and ■extraordinary to call for discussion.

So in regard to the idea that the defendant “ held over,” under his former license. He had no vested right to sell ■spirituous liquors. The statute forbidding a sale without license, and giving to the excise commissioners authority to license such persons as they should deem fit and proper, forbids any such idea. The selection of the persons to be licensed, is purely a matter of discretion. If in one year they thought it fit and proper to license the defendant, the experience of that year might satisfy them that they erred in their former judgment. If in one year they deemed it fit and proper to license twenty persons to sell, the experience of that year might ■satisfy them that they had erred, and that-the wants of'the public would only require that ten be licensed the next year. And if in one year they deemed it fit and proper to license persons residing in a particular ward or district, the experience ■of that year might satisfy them that the interests of the public would be better subserved by having no inns or taverns and retail drinking-shops within that district. I think it clear that the discretion vested in the commissioners, and exercised by them in this respect, is conclusive, and to that effect is ex parte, (Parsons, 1 Hill, 655), and that the right to sell spirituous liquors, which in the absence of any statutory provision, might be exercised by any one, has now, by statute, been converted into a franchise, and can be exercised only by those who have actually obtained a license. (See the Overseers of Crown Point v. Warren, 3 Hill, 150). I do not perceive what application the argument of the counsel, that the refusal of the commissioners to grant a/ny licenses for the ninth ward, was a breach of duty for which they might be indicted as for a misdemeanor, has, to the right of the defendant to sell without any license. This proposition was also embodied in a request that the justice below would so charge the jury. (See Rex v. Young, 1 Burr, 556). I do not deem it necessary to consider at all whether the proposition is correct or not; for whether true or false, the sale by the defendant was none the less a sale, without iei/ng licensed.

If the commissioners neglect their duty and incur a liability to the public therefore, it will not avail the defendant. Even if their refusal to grant any license was a breach of duty they owed to the defendant himself, he must seek his redress by a proceeding against them, and not by a violation of an express law of the State.

The argument amounts to this: by refusing to give me a license, the commissioners neglect their duty, and therefore impliedly license me by their own neglect. In other words, I have a right to sell liquor in the ninth ward; if the commissioners grant me a license, then I am authorized to sell by virtue thereof; if they refuse, then their refusal operates as a license, and I am authorized to sell, because they so refuse ; so that with license or without license my authority is complete, and whether the commissioners grant me a license or not is immaterial. I am not able to appreciate the force of this sort of logic. There is no such right in the defendant to sell. The commissioners have violated no duty to him, and no court can compel them to grant him a license, (Exporte Parsons, 1 Mill, 635), or justify him in selling without such license.

III. It is further argued that the court below should have granted a nonsuit, when moved for upon the ground that the plaintiffs had merely proved the fact that the defendant had sold, &c., without having also shown negatively that the defendant had no license. That the burden of proving this also was upon the plaintiffs.

If there was any foundation for this argument at the time the motion for a nonsuit was made, it is now too late to urge it, for it appeared, in the subsequent steps of the trial from the defendant’s own witnesses, that he had no license. If the defendant wished to avail himself of this supposed defect in the plaintiff’s proofs, he should have rested upon his objection, so far at least, as not to supply the defect himself. Ho rule is better settled, than that where a nonsuit might properly have been gz'anted for such a defect, if either party in the course of the trial supplies the proof which was before wanting, the objection is obviated.

IV. It was however held by the Supreme Court, in Potter v. Devoe, (19 Wend., 361), where this precise point was before the court, that the burden of showing that the defendant had no license was not on the plaintiff; but on the contrary, that whether the defendant had a license or not, was a matter peculiarly within his own knowledge, and the burden of showing that he had a license was cast upon him by proof of the fact of a sale of the spirituous liquors. See numerous cases there cited to support the piinciple. ,

V. Another ground for reversal urged by the counsel for the appellant, is that the complaint did not specify the days upon which the alleged sales "were made, with sufficient precision to warrant the proof.

“ The statement in the complaint was that the defendant, on the 6th, 7th, 8th and 9th days, and on each, and emery of said days, did sell, by retail, strong and spirituous liquors, &o., to be drunk on defendant’s premises,” in said city, &c.

I dó not perceive in what respect, if any, the complaint is not sufficiently certain and explicit. Had the plaintiffs named each, day in any other language, e. g., on Tuesday, the 9th day of May; on Wednesday, the 10th day of May; on. Thursday, the 11th day of May; and so on down to the sixth day of June, the complaint would have heen no more definite, explicit, or certain, than to say on each and every day for thirty days previous to the said 6th day of June.

Besides, if the complaint was defective in this respect, it was a mere defect of form, only available under the general rules of pleading, formerly existing by a special demurrer, and is cured by verdict.'

And still further, by the express provisions of section 61 of the Code, subdivision 5, pleadings in the district courts are not required to be in any particular form, provided, always, they are such as to enable a person of common understanding to know what is intended. The complaint here abundantly meets that requirement—and by subdivisions 6 and 7, when a complaint is not sufficiently explicit to enable the defendant to understand it, he may demur—and if the court deem the objection well founded, it shall order an amendment. This, then, is the remedy, if the complaint be defective in the particular under consideration. I am, therefore, clearly of the opinion that the objection itself was groundless, and if it were otherwise, the defendant cannot now avail himself of the objection, having answered to the writs and gone to trial without pursuing the mode pointed out by the statute to procure an amendment.

YI. A further ground for reversal is, that the jury, by whom the cause was tried, were not summoned and impanneled according to law.

The return states that the justice “ caused a venire to be issued, in the manner required by law, to summon twelve persons named in a panel annexed thereto, being good and lawful men of the eighth and ninth wards of the city of New York, qualified to serve as jurors, to appear,” &c. On the appearance of the jury, the return states that the defendant’s counsel challenged the array on the ground that too many jurors had been summoned. This objection being overruled, and six jurors being drawn to serve on the trial, the defendant’s counsel objected to going to trial on the ground that twelve jurors were necessary according to law to try the action. It is impossible to say which of these two objections was deemed by the counsel to be well founded, for obviously both could not be. If twelve jurors were necessary, then summoning twelve was not summoning too many. I conclude, however, that he does not now think that there was any foundation for either objection, since on the argument of the appeal, he neither argues that too ma/ny were summoned, nor that too few were impanneled. The act relating to these courts, passed in 1813, (2 Rev. Laws, 1813, p. 374) section 95, prescribes the number to be summoned, and fixes it at ttoel/oe, and the same section fixes six as the number who shall be impanneled to try the cause. This statute, so far as it determines the number of jurors to be summoned, and the number to be drawn, has not been repealed or altered. The return states that the defendant further objected to the jury, that they were not selected by the constable. It is sufficient to say of this objection, that neither the statute of 1813, nor any other statute requires that the constable shall make such selection. The act of 1813 requires that the justice shall nominate in a panel the names of eighteen persons, and that the venire shall direct the constable, or marshal, to summon any twelve of these persons to appear. And in this respect, the return states that the venire was issued in the manner required by law, and the law of 1847, which will be presently considered, in no wise imposes upon the constable the duty of selecting the jury. But this objection was not urged upon the argument of the appeal. It does not appear to have any foundation. And even if it had, it would avail nothing, according to the views expressed regarding the remaining objection, which was, that the justice had no power to issue a venire to summon a jury. The grounds of this objection do not appear by the return, but it is argued by counsel upon the appeal that the act of 1847, (Laws of 1847, ch. 495, p. 734), has altered the law of 1813 in relation to the mode of selecting jurors for the district courts, and that jurors in those courts, as well as the other courts in this city, should, on requisition by the court directed to the county clerk, be drawn from the petit jury box in his office, and a certificate of such drawing should be .delivered by him to the officer authorized to summon jurors for those courts. Had this objection been taken by the defendant in his challenge to the array, I think it must have been deemed well taken. The statute last mentioned, in terms requires that the jurors hereafter to be summoned for the several courts authorized to try issues of fact in the city of Hew York, shall be drawn, upon requisition by such courts respectively, directed to the county clerk.

The district courts fall within this description, and all laws conflicting with the provisions of this act are expressly repealed. The manner of nomination and selection prescribed in the act of 1813, and the requirements of the act of 1820 (Laws of 1820, ch. 1, p. 3), directing that the jurors for these courts shall be summoned from the wards composing the district, are therefore repealed. And the justice therefore had no authority to issue a venire for jurors selected from the particular wards composing his district. He should have made a requisition upon the county clerk for the requisite number of jurors, and the certificate of the drawing by such clerk delivered to the constable would be his warrant for summoning them to attend. It is undoubtedly true that this practice will be found in some respects inconvenient, and especially when the jurors drawn reside at a great distance from the place of trial, but since it cannot be denied that those courts are authorized to hry issues of fact, they must be deemed within the statute, and the legislature, and not the courts, must remedy the inconvenience, if any be found. That portion of the act of 1813 which limits the number of jurors to be ordered to eighteen, and the number to be summoned to twelve, and the number to be empanneled to six, remains unrepealed, and in the requisition to be made upon the county clerk, that act is doubtless in this respect to be observed in each case in which a jury is demanded. But in this particular case, the objection cannot, I think, avail the defendant; the irregularity in summoning the jury was ground of challenge to the array, and should have been made in the first instance. Ho such ground of challenge was taken, and after the jury were empanneled and sworn, it was too late. Courts have often granted -new trials, even after verdict, for similar causes, where it appeared that injustice may have been done; bnt when the contrary was apparent, they have no less often refused. In the present case no conscientious jury, however summoned, could have rendered any verdict more favorable to the defendant than was rendered.

Challenges are to be presented to the. court in their proper order, that they may be tried and disposed of in due succession, and so that, if the array be quashed, another jury may be summoned. Challenge to the array is first in order, and, after that is disposed of, then the party may present his challenge to the polls, and an objection to the array, if not made ground of challenge before the jury is sworn, is waived, and cannot afterward be insisted on as a matter of strict right; though in courts having power to grant new trials it may be considered, and will be allowed to prevail, to prevent inj ustice.

In the return, the swearing of the jury is not specifically mentioned, but it is apparent from the language of the return, not only that the array was not challenged for this cause, but that the objection was not made until after the jurors were drawn and ready for the trial. If in this particular the return is defective, the appellant should have caused it to be amended. I am aware that it may be suggested that this disposition of the question requires strictness in the due order of proceeding in justice’s courts, but not more than is just. Indeed, I do not perceive how, after the jury are sworn, such an objection could be sustained without involving a discontinuance. After that stage in the trial, I very much doubt the power of the justice to discharge the jury and summon another for such a reason.

I conclude, therefore, that the judgment should be affirmed.  