
    In the Matter of the Petition of William W. Farley, as State Commissioner of Excise, for an Order Revoking and Canceling Liquor Tax Certificate No. 4,857 Issued to Alexander Spier. William W. Farley, as State Commissioner of Excise, Appellant; Alexander Spier, Respondent.
    First Department,
    March 6, 1914.
    Intoxicating liquors — revocation of liquor tax certificate — maintenance of disorderly house — expiration of certificate not a bar to proceeding for cancellation.
    Where, in a proceeding for the revocation of a liquor tax certificate, in the application for which the defendant had -stated that he intended to carry on a hotel in the premises, it is conclusively established that the portion of the building above the defendant’s saloon has been conducted as a disorderly house, a claim by the defendant that he had nothing to do with the portion of the building occupied as a hotel, is no defense, where it appears that there was direct communication between his barroom and the hallway and staircase leading to the hotel rooms which were used for disorderly purposes.
    The expiration of a liquor tax certificate is not a bar to a proceeding for its cancellation. Hence, the court should not refuse to try the issue as to unlawful selling because the certificate expires on the following day.
    Appeal by the petitioner, William W. Farley, as State Commissioner of Excise, 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 29th day of October, 1913, denying his petition to revoke the liquor tax certificate herein.
    
      Charles R. O’Connor, for the appellant.
    
      Maurice Meyer, for the respondent.
   Scott, J.:

On September 27, 1912, the respondent, Alexander Spier, applied for a liquor tax certificate to cover the year beginning October first. In his application he stated that liquors were to be sold at Nos, 2025-2027 and 2029 Lexington avenue, borough of Manhattan, in “Front room; ground floor; south, 2029, side or end of building.” He also stated that he intended to carry on a hotel in the premises, and that said premises had been continuously operated as a hotel since 1889.

The evidence showed in the most conclusive manner that the hotel portion of the building, that is, the portion above respondent’s liquor saloon, was conducted as a disorderly house and an immoral resort. The respondent strives to shield himself behind the plea that it is not shown that he had anything to do with the hotel portion of the business, which it is conceded was conducted by the Baltic Hotel Company.

This plea is the only one upon which respondent seeks to sustain the order appealed from, and is presumably the one upon which the Special Term acted, since no other defense to the prayer of the petition is apparent upon the record. If such a plea is to succeed an easy way will be opened to evade the provisions of the Liquor Tax Law. Fortunately it need not. Section 30, subdivision E, of the Liquor Tax Law (Consol. Laws, chap. 34 [Laws of 1909, chap. 39], as amd. by Laws of 1910, chap. 494) provides as follows: “It shall not be lawful for any person * ^ * to suffer or permit such premises to become disorderly, or to suffer, permit or have any opening or means of entrance or passageway for persons or things between the room or place where the traffic in liquors is carried on, and any other room or place which any person whosoever suffers or permits to become disorderly, or to carry on or to permit to be carried on or to be interested in any traffic, business or occupation, the carrying on of which is in violation of law.”

It appeared without contradiction that there was direct communication between respondent’s barroom and the hallway and staircase leading to the hotel rooms which were used for disorderly purposes. This of itself was sufficient to justify the revocation of the liquor tax certificate. This has already been held by the Appellate Division in the Third Department. (Matter of Farley, Hogan Certificate, 151 App. Div. 291.) Indeed, the violation of the statute in this regard is plain. Furthermore, we are of the opinion that the mere concession that the hotel portion of the premises was conducted by the Baltic Hotel Company was not sufficient, without other proof, to rebut the presumption that the respondent “permitted and suffered ” the premises to become disorderly in the face of his declaration that he proposed to carry on the hotel, and of the close connection between the hotel and the barroom.

The petition also alleged as a reason why the liquor tax certificate should be revoked that the respondent had sold liquor on Sunday contrary to law, and. the petitioner was prepared and offered to prove this allegation.

The trial took place on September 30, 1913, and the court refused to try the issue as to unlawful selling because it would be a waste of time, since the certificate would expire on the next day. This was error. It has been uniformly held that the expiration of the certificate or its surrender for rebate is not a bar to a proceeding for cancellation. The right to cancellation where the evidence warrants it exists at the date of the institution of the proceeding, and is not impaired by the subsequent expiration, of the license. The issue had been made by the petition and the answer and the petitioner was entitled to have it tried and determined.

For these reasons the order appealed from must be reversed and a new trial granted, with ten dollars costs and disbursements to the petitioner, appellant.

Ingraham, P. J., McLaughlin, Clarke and Hotchkiss, JJ., concurred.

Order reversed and new trial granted, with ten dollars costs and disbursements to the petitioner, appellant. Order to be settled on notice.  