
    First Appellate Department,
    July Term, 1901.
    Reported. 63 App. Div, 206.
    In the Matter of the Petition of Charles E. Schuyler, Appellant, for an Order Revoking and Canceling Liquor Tax Certificate No. 12,421, Issued to Ernest Rorphuro, Respondent.
    Revocation of a liquor tax certificate—Facts establishing the exception in favor of a hotel must be pleaded and proved—Service of a sandwich with beer.
    Where a proceeding for the revocation of a liquor tax certificate is brought on the ground that the holder thereof unlawfully sold liquor on Sunday, the holder, if he intends to rely for his defense on the exception contained in section 31 of the Liquor Tax Law in favor of hotelkeepers, must plead and prove the facts bringing him within such exception.
    The fact that the proprietor of the alleged hotel served a sandwich with each glass of beer sold by him on Sunday does not constitute the persons so served “guests” within the meaning of section 31 of the statute.
    Appeal by the petitioner, Charles E. Schuyler, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 24th day of January, 1901, denying his petition for the revocation of a liquor tax certificate issued to Ernest Rorphuro, and also from a judgment entered in the clerk’s office of the county of New York on the 26th day of January, 1901, upon said order.
    
      J. Aspinwall Hodge, Jr., for the appellant.
    
      George H. Taylor, Jr., for the respondent.
   Hatch, J.:

This proceeding was taken under section 28, subdivision 2, of the Liquor Tax Law (Laws of 1896, chap. 112, as amended by Laws of 1900, chap. 367). It is admitted that the respondent had a liquor tax certificate duly issued to him under subdivision 1 of section 11 of the Liquor Tax Law permitting him to traffic in liquors at Nos. 2835, 2837 and 2839 Broadway, in the borough of Manhattan, New York, for a term of twelve months from May 1, 1900, which, at the time the proceeding was instituted, had not been surrendered or canceled, nor transferred in accordance with the provisions of the Liquor Tax Law. Violations of the law in two particulars are alleged, viz., selling liquors on Sunday contrary to the provisions of the statute, and having open the entrance to his bar on Sunday for purposes other than those permitted by the statute. The answer puts in issue these averments.

The matter was referred to a referee to take proofs in relation thereto and report the evidence to the court. The referee took the proofs and reported the same to the court with the testimony taken by him, and upon the coming in of the report the Special Term denied the application without opinion and without making any findings of fact or conclusions of law. From the order thereupon made and entered the petitioner appeals to this court.

It is important that we determine first whether or not the record shows that the respondent kept a hotel, for upon that fact the determination of this appeal largely depends. It is contended by the appellant that the respondent has not brought himself within exception of section 31 of the Liquor Tax Law (as amended by Laws of 1897, chap. 312), which provides that “the holder of a liquor tax certificate under subdivision one of section eleven of this act, who is the keeper of a hotel, may sell liquor to the guests of such hotel, * * * with their meals, or in their rooms therein, except between the hours of one o’clock and five o’clock in the morning, but not in the barroom or other similar room of such hotel.” The section then defines a hotel, the meaning of the term “guest” as used in the act, and the exemptions of hotel-keepers from certain provisions of the law. A guest is defined as (1) “A person "who in good faith occupies a room in a hotel as a temporary home, and pays the regular and customary charges for such occupancy, but who does not occupy such room for the purpose of having liquor served therein; or (2) A person who during the hours when meals are regularly served therein, resorts to the hotel for the purpose of obtaining and actually orders and obtains at such time, in good faith, a meal therein.”

The rule is well established that if a party relies upon the exception contained in the part of section 31 in favor of hotel-keepers, bona fide clubs, etc., he must plead and prove the facts bringing him within the exception. (Matter of Lyman, 28 App. Div. 127.) It is insisted that the respondent has not complied with this rule. The petitioner avers that the respondent made application “for a liquor tax certificate to traffic in liquors * * * under subdivision one of section eleven of the Liquor Tax Law,” and filed a bond in the penal sum of $1,600, and paid the deputy commissioner the sum of $800, and that such commissioner did, pursuant to section 19 of the Liquor Tax Law, issue to the respondent a certificate “showing that the excise tax had been paid by the said Ernest Rorphuro to traffic in liquors as specified in said statement and application.” These allegations are admitted by the respondent in his answer, but the answer contains no averment that the place at which said Rorphuro was to carry on the business of trafficking in liquor under the certificate was a hotel, or that he was a hotelkeeper, or that his application so stated, nor any other fact bringing the place or himself within the exceptions and immunities granted to hotelkeepers by the statute. The deputy commissioner of excise also answered the petition, and averred that he duly issued to respondent a certificate under subdivision 1 of section 11 of the act, but he does not aver that the business was to be carried on in connection with the keeping of a hotel, nor that the requirements of the statute defining hotels Í § 31) had been complied with. All that is made to appear by the petition and answers, therefore, is that the respondent had a certificate duly issued to him to traffic in liquors under subdivision 1 of section 11 of the Liquor Tax Law. As that subdivision applies generally to the business of trafficking in liquors to be drunk on the premises where sold, whether in a hotel, restaurant, saloon, store, shop, booth or other place, and the rights of the holders are different, depending upon the character of the business in connection with which the traffic in liquors is to be carried on, it is apparent that it is essential, if the complaint is for an act which would be a violation of the act if committed in a saloon, store, shop or booth, but not if committed in a hotel by one carrying on the business of a hotelkeeper, that the person against whom the complaint is made plead all of the material facts bringing him within the exception, if he seeks to rely upon such an exception as a defense. The principal charge in this case is selling liquor on Sunday, and it is manifest that the respondent was not entitled to prove that he was engaged in keeping a hotel at the place designated in the certificate, and the reception of evidence of such fact ivas error.

However, if he had been entitled to interpose the defense, he utterly failed to show the facts constituting the place a hotel within the requirements of the statute. Testimony was received over the objection of counsel that the place was conducted as a hotel; that respondent conducted a hotel and dancing pavilion; that there was a dining room and twelve or thirteen rooms upstairs; that the dimensions of some of the rooms were eight feet by twelve and some were larger, and that they were furnished and people could and did live in and occupy them. This evidence, made up as it is largely of conclusions, giving it as liberal a construction as may be, falls far short of proving the facts required by section 31 of the Liquor Tax Law, and does not even tend to prove that the certificate authorizing the trafficking in liquors was issued to respondent as the keeper of a hotel. It is equally consistent with the fact that his application might have shown that he was a saloon keeper or a restaurant keeper, and the certificate issued to him as such.

It follows that, as the testimony shows conclusively that liquor was sold and drunk on the premises on Sunday, a day on which sales are strictly prohibited by the statute, except under conditions which, as shown, the respondent has not brought himself within, the prayer of the petitioner should have been granted and (he certificate issued to the respondent should have been revoked and canceled.

We are further of the opinion that had it been averred and proved by the respondent that he was entitled to the immunity granted to a hotel keeper, the evidence as to what took place on Sunday, May 20, 1900, shows a clear violation of the law. It appears that the premises where the respondent carries on business and mentioned in the certificate consist of a low, wooden two-story building, with a bar in one corner, and in the rear an open dancing platform covered by a tent. In this pavilion or tent, drinks and sandwiches or other victuals if ordered are served at small tables. There is a “ bouncer ” and also signs with rules against swearing, which, it is contended, show the manifest determination of the proprietor to maintain the eminent respectability of his “ place.” On the afternoon of the Sunday mentioned, at three-thirty o’clock, two witnesses testify that they went into the pavilion and sat down at one of the empty tables- and called for two glasses of beer which were served to them. They testify that they ordered nothing to eat and that nothing was served to them but beer. Men and women were inside drinking at other tables; dancing was going on in the centre of the platform and the music was playing. At about eleven o’clock in the evening they returned there and remained about one hour. On this visit they bought, paid for* and drank beer; nothing but beer was ordered nor was anything to eat served them. The same conditions were in evidence as in the afternoon, singing, dancing, drinking and disorderly conduct. It is not denied by the respondent that he sold the drinks to the witnesses-as testified by them, nor does he pretend that they were served with a regular meal in the dining room or in their private room, but he seeks to make it appear that every one who -procures a drink at his “ hotel ” on Sunday must become his guest ” by partaking of a dona fide sandwich at least, and that the custom must have been followed in this instance. Let us give him the benefit of the doubt and assume that a real sandwich was served with each glass of beer, do the facts then constitute the persons served “ guests ” within the meaning of the statute? Did they resort to this hotel ” during the hours when meals were regularly served therein for the purpose of obtaining, in good faith, a meal therein ? We think not, but that the evidence shows that the serving of sandwiches under such circumstances was a mere pretext to evade the law, it is not serving a meal in good faith, nor does it constitute the respondent the keeper of a dona fide hotel, so as to entitle him to the protection of the exception contained in the law. (Matter of Lyman, 28 Misc. Rep. 408.)

The custom of trafficking in liquor on Sunday after the manner of the respondent (by his own showing) is too clearly contrary to the express provisions of the statute to bear scrutiny and should not be countenanced. It follows that the order appealed from should be reversed, with costs, and an order granted revoking and canceling the certificate of the respondent, with costs.

Patterson, O’Brien, Ingraham and McLaughlin, JJ., concurred.

Order reversed, with costs, and order granted revoking certificate of respondent, with costs.  