
    Third Appellate Department,
    June Term, 1903.
    Reported. 85 App. Div. 235.
    In the Matter of the Petition of Byron R. Brewster, Appellant, for an Order Revoking and Canceling Liquor Tax Certificate No. 28,566, Issued to Frank L. Hillman, Respondent.
    Cancellation of a liquor tax certificate—What constitutes a use of property as a hotel March 23, 1896—What evidence establishes a subsequent abandonment of the use of the premises for hotel purposes—Consents of property owners required.
    In a proceeding for the cancellation of a liquor tax certificate, one of the issues involved was whether the premises were, on March 23, 1896, occupied as a hotel within the meaning of section 31 of the Liquor Tax Law (Laws of 1896, chap. 112, as amended by Laws of 1897, chap. 312,. §22).
    Upon this point it appeared that the building was built in 1892 by one Cummings, and was occupied by him until May, 1896; that during all this period there was a sign on the building designating it as a boarding house; that, although most of those who occupied the house were boarders at agreed prices by the week or month, Cummings received and cared for every traveler or transient guest that applied; that the building had the requisite number of rooms, and that no persons permanently dwelt therein other than Cummings’ family and servants.
    During this period no liquor was sold upon the premises, and during a portion thereof Cummings maintained a grocery store upon the first floor.
    
      Held,, that it could not be said that the building was not regularly kept open “for the feeding and lodging of guests”;
    That evidence that subsequent to March 23, 1896, Cummings leased a portion of the premises, not containing the requisite number of rooms, for hotel purposes and leased the rest of the premises, with the exception of the part which was occupied by himself, for general tenement purposes, established an intention on the part of Cummings to abandon the use of the premises as a hotel;
    That, in consequence of such abandonment, a certificate authorizing the liquor traffic to be carried on in the building could not be granted without the consents of property owners required by the Liquor Tax Law.
    
      Appeal by the petitioner, Byron R. Brewster, from a judgment of the County Court of Essex county in favor of the respondent, entered in the office of the clerk of the county of Essex on the 9th day of February, 1903, upon the decision of the court dismissing the petition of the appellant for an order revoking and cancelling the respondent’s liquor tax certificate, and also from an order entered in said clerk’s office on the 30th day of January, 1903, upon which said judgment is founded.
    The appellant, Brewster, petitioned the county judge of Essex county for the cancellation of a liquor tax certificate issued to Frank L. Hillman, the respondent herein. In his application for the certificate, which was issued to him May 17, 1902, Hillman stated that there were several parties dwelling within 200 feet of the place where he proposed to sell the liquor, said that he had not obtained their consents to such certificate’s issuing. But he stated that such premises were actually occupied as a hotel on March 23, 1896, when the law was passed, and that, therefore, he was excused from obtaining such consents under the provisions of subdivision 8 of section 17 of the Liquor Tax Law (Laws of 1896, chap. 112, as amd. by Laws of 1897, chap. 312).
    He also stated that such premises had been continuously occupied as a hotel since that date.
    Brewster claimed that such premises were not then nor had they since been occupied as a hotel, and that, therefore, the. certificate to Hillman was improperly issued. Certain other objections were taken by him to the validity of the certificate, all of which were overruled by the county judge, and, after a hearing, an order and judgment was entered dismissing his .petition, with costs.
    From such order and judgment he has taken this appeal.
    
      Francis A. Smith, for the appellant.
    
      A. W. Boynton, for the respondent.
   Parker, P. J.:

The first question presented is whether, on the evidence, the premises were so occupied on March 23, 1896. The answer turns upon whether the use to which such premises were then put constituted them a hotel or a mere boarding house. I am inclined to think that the definition of a hotel, as given in the statute itself, should control in this case. If the building in question was then “regularly used and kept open as such for the feeding and lodging of guests,” and there were, at least, six furnished bedrooms for their occupancy therein, and there were no dwellers therein other than the family and servants of the hotelkeeper, it was a hotel within the meaning of the statute. See section 31 of the Liquor Tax Law, as amended by section 22 of chapter 312 of the Laws of 1897.

Cummings, who built the building in 1892, and who himself occupied it until May, 1896, testified that there were then more than eight bedrooms in it, and that he at all times during that period entertained guests for hire, any one who came, either for single meals, lodging or board. And it also appears that during that period a few such traveling guests were entertained. But it is also apparent that most of those who occupied his house were boarders at agreed prices by the week or month. From the time it was built a sign designating it as a “Boarding House” was kept upon the building. Cummings testified: “ I built the house * * * and called it a boarding house.” There was no notice or advertisement anywhere inside or outside of the house designating it as a hotel, or indicating that transient guests would be received there; and I have no idea that Cummings himself considered that he was keeping anything more than a boarding house. During several years while he occupied it he gave up a large part of the first floor to a grocery store, which he himself kept, and he at no time sold any liquor on the premises.

Yet it cannot be fairly disputed but that he received and cared for every traveler or transient guest that applied, and it is conceded that he had the requisite number of rooms and there were Then no other dwellers in the building. The fact that the guests were very few probably should not control the character of the business which he carried on there. I do not know that we can say, on the evidence, that he did not regularly keep the place open “for the feeding and lodging of guests.” Hence it would seem to have then been used as a hotel, within the definition of the law.

But the further question remains, whether, after the passage of such law, the premises were not. abandoned as a hotel; and so the right to a certificate, without the consent of those dwelling within 200 feet thereof, lost.

If the subsequent acts of the owner justify the conclusion that he intended to discontinue or abandon the use of the building as a hotel, then his right to a certificate without the consents was lost (Matter of Hawkins, 165 N. Y. 188,192). It is claimed by the appellant that the evidence warrants such conclusion.

It is apparent that at times since March 23,1896, the use of the premises would not have constituted it a hotel within the meaning of the Liquor Tax Law. After 1896 the part used by Cummings as a grocery store was leased by him to Bartlett as a millinery shop, and rooms in which Bartlett’s family dwelt and kept house. Humphreys also leased from him a room for a barber shop, and also other rooms in which his family kept house. On the third floor rooms were let to a dressmaker, who dwelt therein. Cummings himself retained rooms in the building, in which he and his family kept house. The rest of the house seems to have been leased to a tenant, who kept it as a boarding house, but received transient guests and travelers whenever they applied. During a portion of this time, however, the rooms under the control of the tenant, and which he could apply to the use of boarders or transient guests, were reduced to five. Thus it is evident that the building for a year or more before Hillman bought it and obtained his certificate, was not in fact used as a hotel within the meaning of the law. The larger part of the building was used substantially as a tenement house, and a part only, and that not enough to provide the requisite number of sleeping rooms, was given up to a boarding house and hotel. Do these facts indicate an intent on Cummings’ part to abandon the building as a hotel ? Assuming, as Ave must, that Cummings knew what constituted a hotel within the meaning of the Liquor Tax Law, it seems clear that he was willing to use his building in a manner that would exclude it from that category, and thus deliberately gave up the right to a certificate without consents, which the law gave him had the use continued as it was in 1896. If he, himself, just prior to his sale to Hillman, had asked for a certificate without consents, on the ground that on March 23,1896, he kept a hotel there, the plain answer would have been that since then he had given the business up to another use, and that as then used it did not answer the requirements of a hotel. It is easier to reach this conclusion from the fact that Cummings himself never sought to sell liquor on the premises; never sought to avail himself of any of the privileges of a hotelkeeper, as applicable to the business of selling liquor, and in fact all the time considered the business as that of a boarding house rather than of a hotel. Each of his tenants after 1896 testified that they leased it as a boarding house, and Cummings does not appear to have ever claimed anything more for it. In the face of this conduct on Cummings’ parr it is straining the evidence beyond warrant to hold that his grantee may now claim that the right to a certificate without the consents still attaches to this property.

Without considering the other questions raised by the appellant, I conclude that the order and judgment should be reversed on the law and the facts, and that the application of the petitioner should be granted.

All concurred.

Order and judgment reversed on law and facts, with costs, and the application of petitioner granted, with costs.  