
    The People ex rel. Richard W. G. Welling v. Alexander Meakim et al., as Commissioners of Excise of the City and County of New York.
    
      (Supreme Court, Special Term, Chambers, New York,
    
    
      Filed April, 1890.)
    
    Mandamus—Excise daw.
    Peremptory writ granted against commissioners of excise for neglect to decide citizen's complaint alleging that licensee kept saloon open on election day, when they delayed decision forty days, and license was about to expire. Such delay is plain negligence of duty.
    The relator, a resident and taxpayer of the city of New York, obtained an order directing the commissioners of excise to show cause why a peremptory writ of mandamus should not issue, commanding them forthwith to render decision upon a complaint against one Scheuplein lodged with them by the relator under § 8-of chapter 175 of the Laws of 1870, as amended by chapter 549 of the Laws of 1873. The complaint was one of a number of like complaints seeking the revocation of liquor licenses and brought before the commissioners on behalf of the City Reform Club, a voluntary association of citizens. It set forth that Scheuplein’s saloon was situated within one-quarter of a mile of a polling-place on election day, 1889, and was open on that day in violation of law.
    The moving papers showed that at a final hearing before the-commissioners on this complaint, February 28, 1890, the relator’s-witnesses had testified that the saloon was opened, as alleged; that liquor was sold over the bar, and that the saloon was 229 feet distant from a polling-place; the papers further showed that this testimony had been uncontradicted, and the licensee had admitted under oath that his saloon was not closed on the day in question; that the commissioners had unreasonably neglected to-render any decision, although often requested so to do, and although more than five weeks had elapsed since the hearing; that the license of the saloon would expire by limitation April 25, 1890, and that, in the case of eighteen other and similar complaints brought by the relator, the commissioners, after final hearing thereon, had allowed the licenses to expire without rendering any decision.
    In their counter-affidavits, the commissioners denied that their delay in rendering a decision had been negligent or unreasonable; and set up the press of their official duties, and alleged that there were complicated points of law involved in these complaints.
    
      Lewis L. Delafield, for the relator, cited :
    
      People ex rel. Sickles v. Becker, 3 N. Y. State Rep., 202 ; People ex rel. Boltzer v. Daley, 37 Hun, 461; People ex rel. Harriman v. Paton, 20 Abb. N. C., 195 ; People ex rel. Carleton v. Assessors of N. Y., 52 How. Pr., 140; People v. Throop, 12 Wend., 187.
    
      Edward Browne, for the commissioners of excise,
    argued that the statute does not require them to render a decision upon such complaints, but merely to revoke the license if satisfied that the licensee has violated the law, and cited Matter of Breslin, 45 Hun, 210; 10 N. Y. State Rep., 82.
   Barrett, J.

The uncontradicted testimony shows that the commissioners have neglected their duty in not deciding this and other cases brought before them. They say they have not taken unreasonable time to decide these cases, but the facts show that in this instance, upon the briefest testimony, they have taken over-forty days. That was plain negligence, and it was subversive of the law, in that the dealer’s license had nearly expired. The denial of negligence is a denial of a mere conclusion. The fact of negligence plainly appears, and the writ should, therefore, issue,, with costs.  