
    In re HENRY.
    (Supreme Court, Appellate Division, First Department.
    December 31, 1900.)
    Appeal—Finding op Fact—Conflicting Evidence.
    Where the trial court made a decision on conflicting evidence, it will not be disturbed on appeal.
    Appeal from special term, New York county.
    Petition by John Q. A. Henry for revocation of a liquor tax certificate issued to Frank E. Moran. From an order of the special term denying the relief, petitioner appeals.
    Affirmed.
    The following was the opinion of the court below (BISCHOFF, J.):
    In view of the evidence produced for the respondent, I cannot hold that the preponderance of proof is with the petitioner touching the violations charged. There is ample evidence to support the claim that the premises, when exposed to view, were sufficiently exposed; and I find no intrinsic probability which should call for my giving the greater credit to the witnesses for the petitioner upon the direct issue of fact as to the sales of liquor, or the failure to expose the premises during the hours stated in the statute.
    Motion denied, with costs.
    Argued before VAN BRUNT, P. J., and RUMSEY, McLAUGHUN, PATTERSON, and O’BRIEN, JJ.
    Royal R. Scott, for appellant.
    Edwin F. Stern, for respondent.
   PER CURIAM.

This proceeding was brought to revoke and cancel a liquor tax certificate issued to Frank E. Moran, who carried on business at No. 501 Sixth avenue, upon which premises he kept a hotel, with which was connected a barroom. The petitioner, Henry, a citizen of New York, describing himself as superintendent of the New York Anti-Saloon League, made charges against Moran of violations of the liquor tax law, which charges are specifically set forth in a petition in due form. That petition was, by direction of the court, served upon Moran and the special deputy commissioner of excise for the borough of Manhattan and the Bronx. Moran answered it, and directly denied some, and on information and belief others, of the charges made against him. The special deputy commissioner of excise also answered, stating that he had not sufficient knowledge or information to form a belief as to the allegations of the complaint relating to the alleged violations of law by Moran. On the petition and the answers an order of reference was made to take proof, and such proofs were taken by the referee named in the order. They were reported to the court, and, the whole matter coming up for hearing, the justice at special term denied the motion to cancel the liquor tax certificate, and directed that the costs of the proceeding be paid by the petitioner, Henry. It appeared in the proofs that Moran kept a hotel at No. 501 Sixth avenue, with 15 sleeping rooms, but that he entertained male guests only. He and his family resided in the house. He employed 17 servants, and apparently conducted a respectable establishment. Two witnesses testified in support of the charges that liquor was sold on the premises on Sundays and at forbidden hours during the week. They were flatly contradicted, and the justice at special term remarked that he could not hold that the preponderance of proof was with the petitioner touching those alleged violations. That remark applied to every charge made in the petition of Henry, with one exception, and that is the charge numbered fifth in such petition, which reads as follows:

That Moran “on the 3d day of May, 1900, between the hours of one and five o’clock a. m., and on Sunday, the 6th day of May, 1900, * * * did have, keep, and maintain screens, blinds, curtains, articles, and things covering a part of each window of the room at said premises where liquors were sold and kept for sale, and did have, keep, and maintain in the windows, and the doors of said premises opaque and colored glass, all of which and each of which obstructed and prevented a person passing from having a full view from the sidewalk, alley, and road in front of, and from the side and end of, said building, of a part of the barroom, and of the whole thereof, in said building where liquors were sold and kept for sale.”

That charge was founded upo-n subdivision “h” of the thirty-first' section of the liquor tax law, which provides that it shall not be lawful—

“To have during the hours when the sale of liquor is forbidden, any curtain, screen or blinds, opaque or colored glass that obstructs the view from the sidewalk, alley or road in front of or from the side or end of the building of the bar or place in such building where liquors are sold or kept for sale.”

The testimony in support of this charge is somewhat vague as to the 3d of May, but there were two witnesses called by the petitioner who swore that on 'Sunday, the 6th of May, 1900, between the hours of 4 and 6 p. m., they could not see from the street into the barroom from any point on Sixth avenue or on the side street, and one of them (Sandford) swears that his view was obstructed by wooden cabinetwork in a window on Sixth avenue, which extended above the height of a man’s head, and in the front window there were bottles, and that he could not see into the barroom in any way; that he tried every Avay, and could not see. Another witness (Booth) testified that he could not' see into the interior of the barroom from any point; that he .could not see inside the window or door at any point. What efforts these men made, to see in are only generally mentioned. There was evidence on the part of Moran to show that this cabinetwork in the window was so constructed that the barroom could be seen. There were no curtains or shades in this window, but there were panels. It was shown that Moran’s instructions to his servants were to remove those panels during prohibited hours, and there was also evidence to show that the interior of the barroom could be seen at all times from the side street. Although this charge is á technical one, yet, upon satisfactory proof of its "violation, it would be the duty of the court to revoke this license, for the value of the prohibitory provisions of this statute depends altogether upon their rigid enforcement. But the evidence to sustain a technical charge of this character ought to be such as to satisfy the judgment and the conscience oí the court. There Vs no reason to doubt the truth oí the statement oí Moran and his witnesses as to the instructions given respecting the exposure of the bar to observation from the street during prohibited hours, and the constant compliance with the requirement of the law in that respect. Naturally his servants could not testify to a particular hour on a particular date long past, but they could testify to general conditions which would indicate that, had the petitioner’s witnesses made proper examination, they could have seen into the barroom on the occasions upon which they testified that it was screened from observation. The justice at special term evidently was not satisfied with the sufficiency and conclusiveness of the testimony of the witnesses in support of this charge: He was authorized, on the whole evidence, to reject their story; and, under the circumstances of the case, we do not feel called upon to reverse his decision.

The order appealed from is therefore affirmed, with costs.  