
    The People of the State of New York ex rel. Julius Schulz Respondent, v. Joseph Murray and Others, Constituting the Board of Excise of the City of New York, Appellants.
    
      Excise Law — license refused to a place, a previous license to which was revoke;», because of its bad character.
    
    Where a license, granted to sell liquor upon certain premises, has been revoke! for the reason that the place has become a resort for disorderly persons, an application for a new license made by anothdr person six weeks later, in the absence of proof that the character of the place has changed, is properly refused by the excise commissioners of the city of New York.
    Where a building has become a resort for prostitutes and thieves it is not a suitable place for t'he sale of liquors.
    Appeal by Joseph Murray and others, constituting the board of excise of the city of New York, from an order of the Superior Court of the city of New York, entered in the office of the clerk of said court on the 30th day of April, 1895, annulling a decision of said board refusing to grant a license to the relator.
    
      Julius M. Mayer, for the appellants. •
    
      Charles L. Hoffman, for the respondent.
   Patterson, J.:

This is an appeal from an order made at a Special Term of the Superior Court of the city of New York on the 30th day of April, 1895, in a certiorari proceeding against the board of excise of the city of New York, in which proceeding was brought up for review the action of the commissioners of excise in refusing to grant to the relator a license to sell liquor on the premises No. 319 Bowery in the city of New York. The order appealed from in

effect reversed the action of the commissioners and directed .them tó grant the application of the relator and to issue to him a license to sell liquor on the premises in question in accordance' with his application. -

,The refusal of the commissioners to grant the relator’s applicatian was based upon the distinct ground that the premises in question were not a fit place in which to allow the sale .of liquor, and that is the only, reason appearing in the record as inducing them to withhold a license. The application was inad_e to: them on or about the 20th of March, 1895, and on the 9th of April, 1895, they announced their determination, embodying their decision in a memorandum in the following words: “April’9th, 1895. The application of Julius Schulz for a hotel license, fop the premises 319 Bowery is rejected and a license refused for the reason that said place is not a fit and proper place for a license, reference being had to the proceedings of the board on the complaint for the revocation of a license for said premises issued to Joseph Hirschhorn and to the decision of the board under date of February 9th, 1895, revoking said license for the reason that the said premises had been permitted to become- disorderly and a resort for disorderly persons.”

It is apparent from the language of "this memorandum that the reason assigned for-refusing the license to the relator was that the place sought to be licensed was not a fit and proper one,‘and the evidence upon which they acted Was the record of a prior finding made by them showing conclusively that on the 9th of February, 1895, it had been determined that the same premises had been permitted to become, disorderly; the meaning of which is amplified in their return by the statement that the license of one Joseph Hirschhorn for said premises Was revoked ’ for permitting the -said premises to become disorderly and the resort of disorderly and immoral' persons and a place for persons to visit for lewd, obscene and indecent purposes, and the resort of prostitutes and thieves.” -

The relator knew of the bad character of these, premises, for he himself testified that it was at his instigation or procurement that the license of Hirschhorn had- been revoked. The character of the premises was, therefore, clearly established and it was entirely within the discretion of. the • excise commissioners to determine whether or not they would allow a license to issue to sell liquor upon premises with such a stigma upon them. It is not a fact that the revocation of the license was based upon the character of the tenant, but upon the use to which the premises had beeu put, by reason of which use they had become of ill-repute and unfit to be licensed. It was the fact that the property had been used for disorderly purposes by the fault of the tenant, and that the license was revoked; and the refusal to issue a new license is clearly based upon the character the premises had acquired as a place of resort for lewd and disreputable persons, and that was a sufficient reason for the commissioners’ action. As was said in Michael's Appeal (63 Conn. 583), a building which "has become the abiding place of either lawbreakers or of crime cannot be a suitable place in which to sell liquors. A building which has been used for a long period to violate law is not a suitable place in which to sell liquors.

There was nothing before the commissioners to show that the character of these premises had in any way changed and no real assurance that they would not be resorted to- by persons of the same stamp as those "who had frequented it previously. The only effort made in that direction by the relator was to show that he was a person of good character and that he intended to keep a lodging house for men. The commissioners were not bound to act only upon such evidence which, as matter of fact, so far as this record shows, fell far short of what the relator claims. The only witness appearing before the commissioners to testify to the character of the relator was not able to testify even that he was acquainted with him, for when asked whether he knew the relator, the answer of the witness was that he had heard of him.

The premises in the judgment of the commissioners stood condemned as an improper place for the sale of liquor. There was no evidence to show that the reputation of such premises had been redeemed. It is idle to say that the action of the commissioners places a perpetual disability upon the premises. It may become a question of fact for them to determine hereafter, whether the place has ceased to be a resort for disorderly persons, but they were quite justified in exercising their discretion, and in refusing the license applied for by the relator within six weeks after the premises had been condemned as unfit to be licensed.

The order of the Superior Court must he reversed and the writ of certiorari dismissed, with ten dollars costs and disbursements of appeal and costs in the court below.

Van Brunt, P. J., Barrett, Rumsey and Williams, JJ., concurred.

Order reversed and writ of certiorari dismissed/ with ten dollars costs and disbursements- and costs in the court below.  