
    William W. Farley, as State Commissioner of Excise of the State of New York, Respondent, v. Antonio Scherno and the Fidelity and Casualty Company of New York, Appellants.
    Third Department,
    November 15, 1911.
    Intoxicating liquors — liquor tax certificate — when the applicant and sureties liable — certificate to sell liquor on United States military reservation.
    Where an application to the excise authorities of the State of New York for the issuance of a liquor tax certificate recites that the applicant desires to traffic in liquors on specified premises in the city of Plattsburgh, owned by his wife, and in connection with his application he presents the usual liquor tax bond conditioned, among other things, that no material false statements had been made in the application, neither the certificate holder nor the sureties on the bond will be heard to say in an action brought by the State Commissioner of Excise to recover on the bond that it was without consideration and the liquor tax certificate unauthorized, on the ground that the premises in which the traffic in liquors was to be carried on were situated on the United States military reservation at Plattsburgh. The State of New York has no power to punish offenses against the Liquor Tax Law committed on premises belonging to the United States to which jurisdiction has been ceded by the Legislature.
    A liquor tax certificate is presumed to have been issued on the assumption that the facts set forth in the application are true, and for the purpose of avoiding subsequent liability the liquor tax holder or bis security cannot be heard to say they were false.
    Appeal by the defendants, Antonio Scherno and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Clinton on the 1st day of March, 1911, upon the decision of the court rendered after a trial at the Clinton Trial Term, a jury having been waived.
    
      John E. Judge and Lucius A. Waldo, for the appellants.
    
      A. M. Sperry, for the respondent.
   Houghton, J.:

The action is to recover the penalty prescribed by a bond given upon the issuing of a liquor tax certificate on the ground that the certificate holder allowed the premises to become disorderly.

An amendment of plaintiff’s complaint was made upon the trial, to which the defendants did not. object and in which they acquiesced, and with this. amendment incorporated the complaint alleged that the defendant Scherno filed with the county treasurer of Clinton county an application for the purpose of-obtaining a liquor tax certificate, in which he stated that he desired to traffic in liquors at No. 8 United States avenue, in the city of Plattsburgh, on premises known as Scheme’s Hotel, owned by his wife, and that with such application he presented the usual bond, executed by the defendant, the Fidelity and Casualty Company of New York, conditioned that he would not violate any of the provisions of the Liquor Tax Law, and that there was no material false statement in the application for such- liquor tax certificate. It was further alleged that he violated the conditions of the bond by permitting the premises to become disorderly, lewd and obscene, and maintained a disorderly house and public, resort for lewd women, and that the statement that the premises belonged to his wife was false.

The defendants answered, admitting the giving of the bond, denying that the premises had become disorderly, and alleging that the premises for which the -liquor tax certificate was granted belonged hi fee, not to the wife of Scherno, but to the United States of America, and was occupied as a military reservation and post known as the Plattsburgh Barracks.”

On the hearing before the court, for the purpose of the trial, the defendant.admitted that he maintained a disorderly house; as alleged in the complaint. Thereupon the plaintiff moved for judgment on the pleadings and admissions, which motion was granted.

The defendants now insist that the bond which they gave was a nullity because the State Excise Commissioner through the county treasurer of Clinton county had no right to grant a liquoi tax certificate to Scherno to sell intoxicating liquors upon premises belonging to the United States, and not having the right to grant any such certificate the bond which was given in consideration of its issuance was void and of no effect.

We are of opinion this contention is unsound. The State of New York gave its consent to the purchase by the United States of land not exceeding one thousand acres which after-wards became known as the Plattsburgh Barracks, and ceded jurisdiction thereof to the Federal government as long as it should continue to own such land, reserving only the right to serve civil and criminal process, by chapter 18 of the Laws of 1890. It was a crime by the law of the State of New York (Laws of 1857, chap. 628, § 13; Id. § 16, as. amd. by Laws of 1869, chap. 856), to sell liquor in quantities less than five gallons, without a license, when such cession was granted.

Congress has prescribed how certain enumerated crimes committed within forts, dockyards and places throughout the country under the exclusive jurisdiction of the United States shall be tried and punished, but selling liquor contrary to the excise laws of a State and the keeping of a disorderly house are not amongst them. (U. S. R. S. §§ 5339-5391.) Section 5391 provides that if any offense shall be committed in any place which has been ceded to and is under the jurisdiction of the United States, which offense is not prohibited or the punishment provided for by any law of the United States, such offense shall be liable to and receive the same punishment as the laws of the State in which such place is situated shall provide.

The only legislation by Congress on the subject is that provided by section 38 of chapter 192 of the Laws of 1901, by which the sale of liquors upon premises used by the United States for military purposes is prohibited, and it is directed that the Secretary of War shall carry the provisions into effect without declaring its violation to be a crime. (See 31 U. S. Stat. at Large, 758, § 38.)

Of course the State of , New York had no right to grant a liquor tax certificate for the sale of liquors upon lands belonging to the United States. i Our attention has not been called to any act of Congress ceding back to the State of New York jurisdiction over offenses against the Liquor Tax Law or the keeping of a disorderly house, and it would seem that the State was powerless to punish an offender for illegally selling liquor bn the premises in question.

But whether the State had any power to so punish or not, we think the defendant Scherno and his surety cannot be heard to say that the premises for which the liquor tax certificate was issued belonged to the United States, and not to the wife of Scherno, as stated in the application for such certificate.

It must be assumed that the certificate which Scherno applied for was to protect him in the trafficking in liquors, and was issued upon the faith of the statements made in his application and on the assumption that they were true. The State having acted upon such statements, and issued its certificate, neither the applicant nor his surety can be heard to say that such statements were false, The bond recites' that the defendant Scherno was about to apply for a liquor tax certificate authorizing him to traffic in liquors at Scherno’s Hotel, No. 8 United States avenue, in the city of Plattsburgh, and the condition of the bond was that no material false statement was made in the application, and that Scherno would not permit the premises to become disorderly. Parties to an action may waive the formalities of the statute in a statutory proceeding, and in sufch case the sureties to the undertaking are bound by the waiver and are estopped from questioning the recitals in the undertaking, and this although they had no knowledge of the facts that the proceedings were not to be taken and the undertaking used in the manner prescribed by the statute. (Harrison v. Wilkin, 69 N. Y. 412.) Where one signs an undertaking in proceedings against a husband for the abandonment of his wife, he cannot be heard to say that the parties were never married. (Commissioners of Charities v. O’Rourk, 34 Hun, 349.) Whether under the former Excise Law the excise commissioners had the right to demand a bond upon the issuing of a saloon license or not, it was held that a bond having been given, the sureties could not dispute its validity. (People, ex rel. Meakim v. Eckman, 63 Hun, 209.) Where a surety signed a bond of a corporation applying for a liquor tax certificate, it was held to be estopped from denying that the corporation was legally organized. (Lyman v. Gramercy Club, 39 App. Div. 661.) The same principle was applied by this department in proceedings to revoke a liquor tax certificate. (Matter of Barnard, 48 App. Div. 423.)

As the complaint was finally amended without objection, a material false statement in the application was plead. The statement that Mrs. Scherno owned the premises, when in fact, as the defendant now claims, the United States owned them, was material, and upon the defendant’s own confession and plea such statement was false. The condition of the bond was, therefore, broken and the amount stipulated to he paid had become due irrespective of whether the keeping of a disorderly house was a forfeiture or not.

It follows that the judgment was right and should he affirmed, with costs.

All concurred, Kellogg, J., in result in memorandum.

Kellogg, J. (concurring in result):

By section 5391 of the United States Revised Statutes, the Federal courts enforce upon territory ceded to the United States within a State the police laws of the State as to acts which under State laws are criminal and for which the United States statutes prescribe no punishment.

If Scheme had not obtained a certificate, he would have been punishable in the United States courts for selling liquor; with the certificate he was not punishable, as the act was in violation of no law of the State and the Federal government imposed no penalty for the sale. He undoubtedly obtained the certificate for this very protection, and it answered the purpose for which it was obtained. Therefore, he cannot urge that there was no consideration for the bond upon which it issued.

Judgment affirmed, with costs. .  