
    Andrew Mehler, Plaintiff, v. William F. Baker, Police Commissioner, et al., Defendants.
    (Supreme Court, Kings Special Term,
    July, 1910.)
    Intoxicating liquors — In general — Police supervision.
    Under the express provisions of the Liquor Tax Law police officers in cities have the right to go into, investigate and inspect any portion of premises where' liquor is sold in order to ascertain whether or not there are violations of the Liquor Tax Law, and such right of entry and inspection is not confined to the room where the sale of liquor is actually carried on, but extends, also, to any other portion of the premises in any way connected therewith, to the end that it may be determined whether the law is being violated.
    Motion for an injunction pendente lite to restrain the commissioner of police and other police officers of the city of ¡New York frcm entering the premises of the plaintiff.
    
      Emil E. Fuchs, for motion.
    Archibald R. Watson, Corporation Counsel (James D. Bell and Sanders Shanks, Assistants), opposed.
   Kapper, J.

Holders of liquor tax certificates entitling them to traffic in liquor take them with all the privileges and subject to all the burdens imposed upon them by the Liquor Tax Law.” Matter of Livingston, 24 App. Div. 51, 52. Among these burdens is the prohibition against the use of the premisés for gambling. And not alone must the holder of the certificate refrain from suffering or permitting any gambling to be carried on in the room in which liquors are sold, but in any other portion of the premises which are in anyway connected with that part thereof wherein the traffic in liquors is carried on. Liquor Tax Law, § 17, subd. 8.

The plaintiff under an hotel license carries on the business of selling liquors in the city of Hew York in a building the second floor of which contains two rooms, all the windows of which appeared to be guarded by iron bars and exterior shutters that were closed en each occasion that the police visited the interior of the premises, or looked at the same from the outside. Those two rooms were fitted up with tables and contained a safe; and, upon the ground floor of the premises, there was a metal-covered door leading to these two iron-barred rooms which was kept locked and which the plaintiff himself opened with a key on the occasion of the visits of the police.

The plaintiff claims that he conducts a law-abiding hotel and that no gambling or illegal traffic or conduct is carried on or permitted by him on the premises; he further claims that the police in their visits are committing a trespass, and that they already have had a sufficient and reasonable amount of inspection, and that further inspection constitutes such an annoyance as to amount to a legal trespass and oppression. Besides showing the general construction of the premises, as before stated, the defendants claim that men known to the police as gamblers are seen in and about the plaintiff’s hotel, and that they suspect that the premises are devoted to gambling.

Plaintiff does not inform the court to what uses such rooms are put, and I am at a loss to imagine what a legitimately conducted hotel wants with them in their present state of construction. As now constructed the rooms are a fortress and can be entered only by breaking in and, once in-, can be departed from only by breaking out. If the proprietor desires to be freed from police espionage, he should alter the construction and equipment so as to remove suspicion, to say the least.

It is made the duty, by subdivision 5 of section 32 of the Liquor Tax Law, of all sheriffs, deputy sheriffs, police officers, constables, mayors, village presidents and special agents of the State Commissioner of Excise to enter and inspect any building or premises conducted as an hotel; and said subdivision makes it a misdemeanor for any person to forbid, obstruct or prevent the officers named from free entry into any such building or premises " for the purposes of this act”

And, by section 37 of the Liquor Tax Law, “All police officers are authorized in the performance of their duties to enter upon any premises where the sale of liquors is carried on or liquors are exposed for sale at any time when such premises are open.”

My view is that it was the intention of the Legislature to confer on police officers in cities the right to go into and investigate and inspect any portion of the premises where liquor is sold, in order to ascertain whether. or not there are violations of the Liquor Tax Law. This right of entry and inspection is not confined to the room where the sale of liquors is actually carried on, but also to any other portion of the premises in anyway connected therewith, so that it may be determined whether the act in any of its inhibitions (one of which is gambling) is being violated.

While it may be, as said by Mr. Justice Gaynor in Olms v. Bingham, 116 App. Div. 804-806, that “It is very easy to see the extortion that could be practiced on hotel proprietors by policemen and their superiors if they were permitted to unlawfully invade hotels and annoy the proprietors and guests as they saw fit,” the plaintiff’s suit for an injunction falls where the police visits and inspections are shown to he not unlawful, but in pursuance to statutory command.

However onerous it may appear that the police shall come with frequency into premises where the liquor traffic is carried on under a claim of the right of inspection to determine violations of the act, this is one of the burdens which the act inflicts upon the holder of the certificate, and subject to which he accepted it and traffics in liquors.

The State imposed its restrictions and limitations upon him when he applied for and obtained his liquor tax certificate, and he conducts his business subject to the conditions with which the State surrounded his use of its license. Motion for an injunction denied, with ten dollars costs.

Motion denied, with ten dollars costs.  