
    PEOPLE ex rel. WELLING v. MEAKIM.
    N. Y. Supreme Court, First District, Special Term at Chambers;
    
      April, 1890.
    
      Mandamus to compel excise hoard to determine complaint.1 A writ of mandamus will issue to compel the commissioners of excise in the-city of New York to render a decision upon the complaint of a citizen against a saloon-keeper for violation of the excise law, where there has been unreasonable delay in rendering a decision, and the license of the person complained against is about to expire by limitation.
    The relator, Richard W. G. Welling, a resident and taxpayer of the city of New York, obtained an order directing the respondents, the commissioners of excise, to show canse 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 section 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, a* a final hearing before the commissioners on this complaint, February 28, 1890, the relator’s witnesses had testified that the saloon was open 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. St. R. 202; People ex rel. 
      Boltzer v. Daley, 37 Hun, 451; 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. 167.
    
      Edward Brown,
    
    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 In Matter of Breslin, 45 Hun, 210.
   Baeeett, 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.  