
    The People, Resp’ts, v. William F. Sinell, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 8, 1890.)
    Excise—Saxe op liquor without license.
    Defendant was convicted of a sale of liquor without license. He was a bottler of beer, and claimed to be treasurer of an incorporated social club which met at his house, and that such sales were made by the club to its members. It appeared that the members sometimes received the beer from defendant or his son, and paid them, and sometimes took the bottles-themselves and put the money in the glass. The court submitted the question whether the club was a scheme contrived for the evasion of the statute, and the jury returned a verdict against defendant. Held, no error; and that such defense is swept away by the decision in People v. ■ Andrews, 115 N. Y., 427; 26 H. Y. State Rep., 442.
    Appeal from judgment entered upon conviction of defendant for a violation of the excise law.
    The facts proved were as follows: That the defendant resided at Suffern, Rockland county, in the building owned by his wife. That a lower room of his house was the resort of men and boys, many of whom claimed to be members of the Suffern Social Club. The defendant claimed to be treasurer of the club and his son the steward. The defendant was a wholesale dealer and bottler of lager beer, carrying on this, business in the rear .of the building used by this club. Beer bottled by the defendant was brought into this so-called club room and partaken of by its frequenters. The beer drank in this club room was paid" for in the following manner: Certain witnesses testified that they got beer sometimes from the defendant and sometimes from the son,; and paid the person from whom they received it. Others testified that they helped themselves to the beer and put five cents in the glass for the bottle they drank.
    " G. P. Hoffman, for app’lt; G. Z. Snider, dist. att’y, for resp’ts.
   Dykman,' J.

The defendant was indicted for a violation of the excise laws by the sale of spirituous liquors, and upon a trial in the court of sessions in Rockland county he was convicted of the offense, and this appeal is from such judgment of conviction.

The offense was established upon the trial, but the defense was that the sales of liquor so proven were made by a social club, and not by the defendant.

Thereupon the public prosecutor charged and insisted that the club was a sham and a pretense devised and organized to evade the excise laws,‘and that question was submitted to the jury, and the verdict was against the defendant.

It is therefore to be assumed now that the jury found the club to be a scheme contrived for the evasion of the laws prohibiting the sale of spirituous liquors.

The decision of the court of appeals, however, in the case of The People v. Andrews, 115 N. Y., 427; 26 N. Y. State Rep., 442, sweeps away that defense, and leaves the defendant without any justification.

The conviction should, therefore, be affirmed.

Barnard, P. J., and Pratt, J., concur.  