
    Second Appellate Department,
    July, 1900.
    Reported. 53 App. Div. 470.
    The People of the State of New York ex rel. The Joseph Fallert Brewing Company, Limited, Respondent, v. Henry H. Lyman, as State Commissioner of Excise of the State of New York, Appellant.
    Payment of the rebate on the surrender of a liquor tax certificate—What establishes an acquittal and dismissal of a charge of a violation of the Liquor Tax Law.
    The proceedings on an examination upon a charge of having violated the Liquor Tax Law before a magistrate who “found there was not sufficient evidence to hold defendant for trial” and discharged him, •constitute an acquittal and dismissal on the merits within the meaning of the provision of that law relating to the payment of the rebate upon the surrender of a liquor tax certificate.
    Appeal by the defendant, Henry H. Lyman, as State Commissioner of Excise of the State of New York, from an order of the Supreme Court, made at the Queens County Special Term and entered in the office of the clerk of the county of Queens on the 4th day of April, 1900, directing that a peremptory writ of mandamus issue directing him to pay to the relator the rebate due on the surrender by it for cancellation of liquor tax certificate 22,573.
    
      P. W. Cullinan, for the appellant.
    
      Anson B. Cole [Moses Weinman with him on the brief], for the respondent.
   Jenks, J.

The relator, as assignee of a liquor tax certificate, ■surrendered, it in proceedings for a rebate, and received a receipt from a county treasurer, as authorized by section 25 of the Liquor Tax Law (Laws of 1896, chap. 112, as amd. by Laws of 1897, chap. 312). The Special Term ordered a peremptory writ of mandamus to the State Commissioner of Excise and the comptroller of New York city to pay the amount of such rebate, and the said State Commissioner appeals.

There was a preliminary objection that the petition for the writ does not set forth sufficient facts, in that it fails to allege that the assignors of relator, the holders of the liquor tax certificate, voluntarily ceased to traffic in liquors at the premises for which «aid certificate was granted. The provisions of the present law for rebate which, as the Court of Appeals has said, give a commercial value to the certificate, are hedged in with conditions which qualify the absolute right to receive such refund. (People ex rel. Miller v. Lyman, 156 N. Y. 407, 411.) The proceeding for a refund contemplates the application to .the .county treasurer ■and the issuance of his receipt that states the amount of the rebate, which is payable at the end of thirty days, provided the law is not violated meanwhile. Section 25 of the law in part provides that if a “ person holding a liquor tax certificate * * * against * * * whom no complaint * * is pending, * * shall voluntarily and before arrest * * cease to traffic in liquors during the term for which the tax is paid under such certificate, such * * * person or their duly authorized attorney, may surrender such tax certificate to the officer who issued the same, * * * and at the same time shall present to such officer a verified petition setting forth all facts required to be shown upon such application. Said officer shall thereupon compute the amount of pro rata rebate * * * and shall execute duplicate receipts, * * * together with the amount of rebate due thereon, * * the name of the person entitled to receive the rebate, the locality liable for two-thirds of such rebate, and the name and title of the fiscal officer thereof. One of such receipts said officer shall deliver to the person entitled thereto.” This application is against the disbursing officers, and necessarily is based upon due preliminary procedure. The receipt of the county treasurer is the basis of the rebate, and could not lawfully have been issued unless the petitioner theretofore had shown to the county treasurer a cessation of traffic in liquors. The relator shows a surrender of the certificate and makes the resultant receipt part of its petition. When it had obtained the receipt it had taken one step in the procedure, and I see no reason why, in its motion against the disbursing officers, it should recite any of the facts that must have been shown to the county treasurer before the receipt could lawfully have been issued. It is true that the petitioner must set forth such facts as make it the duty of the officers to pay the rebate. But the holding of the receipt is a fact. The petitioner must show both the issuance and life of the receipt and that it had not violated the conditions of the statute, and so, if it had been arrested or indicted for a violation of the Liquor Tax Law, that it had been acquitted, and that any proceedings or action based upon the alleged violation had been dismissed on the merits. The petition, therefore, shows inter alia that, on the 26th day of September, 1899, one of the holders of the certificate was arrested for violation of this law, was arraigned in the City Magistrate’s Court, third district, borough of Queens, city of New York, on the same day, was duly tried on the 22d day of November, 1899, to which day the trial was adjourned, was acquitted, and that the action against her was dismissed on the merits. A certificate thereof of the clerk of such court is made a part of the petition.

The answering affidavit sets forth that the certificate holders did not voluntarily cease to traffic in liquors, and alleges, upon information and belief,- that on the second day of September they trafficked with one John C. McDonough, selling to him and to one Woods two glasses of whisky; that thereafter McDonough made complaint, and on September 9, 1899, notified the district attorney of Queens county by filing a statement under oath. I think that the violation of the law referred to in the petition and the violation alleged in the answering affidavit may be held identical. The petitioner shows an arrest of Esther Samuels on September 26, 1899, and an arraignment on the same day in a City Magistrate’s Court in the third district of Queens borough, New York city.. The answering affidavit states a violation by Esther Samuels on September 2, 1899, complaint thereon September 5, 1899, a notification to the district attorney of Queens on September 9, 1899, and alleges that the complainant was John C. McDonough. This is the sole violation charged. The certificate of the clerk of the court incorporated in the petition shows that the proceeding disposed of. after the arrest on September 26, 1899, was entitled “ People on Complaint of John C. McDonough against Esther Samuels.”

The further question is whether the petitioner was acquitted and whether the proceeding was dismissed on the merits within the intendment of the Liquor Law. The certificate of the clerk shows that on examination the magistrate “ found there was not sufficient evidence to hold defendant for trial. Defendant was, therefore, discharged on that date.” “ Merits ” implies a consideration of substance, not of form; of legal rights, not of mere defects of procedure or the technicalities thereof. (St. John v. West, 4 How. Pr. 331; Tracy v. N. Y. Steam Faucet Co., 1 E. I). Smith, 349; Megrath v. Van Wyck, 3 Sandf. 750.) If the evidence on examination of the defendant was not sufficient to order her trial, a discharge was her legal right. (Code Crim. Proc. § 207.) The purpose of the provision of section 25 of the Liquor Tax Law is to defeat the rebate in case of violation of law. If such a violation has been charged, the payment of the rebate must wait the final determination of any action or proceedings based upon the violation. So far as the particular proceeding in question is concerned, the action of the magistrate is final. It is not alleged that any new proceedings were ever instituted. 1 think that this disposition may be regarded as an acquittal and a dismissal upon the merits within the intendment of the law, inasmuch as the magistrate found that there was no evidence sufficient to warrant a trial. The word “ acquittal ” is said to be verbum equivocum, in ordinary language, used to express the verdict of a jury or the formal judgment of the court that the prisoner may go therefrom without day. (1 Am. & Eng. Ency. of' Law [2d ed.], 572.) And so the Avord “ acquitted ” means “ set free or judicially discharged from an accusation, released from a * * * charge* or suspicion of guilt.” (Id. 573, citing Teague v. Wilks, 3 McCord [S. C.], 461, where the contention was that the allegation that the plaintiff had been acquitted by the grand jury’s finding of no bill was not, in contemplation of the law, an acquittal.) In Secor v. Babcock (2 Johns. 203) it appeared that upon examination the justice dismissed a criminal charge on the ground of lack of proof, and in an action for malicious prosecution the court says: The acquittal was lawful,” and that there was sufficient ground for the suit. There was no further step in criminal procedure which the defendant in that proceeding could take to obtain a further or a more conclusive judgment on the merits in her favor. And yet if the discharge be not an actual acquittal and a dismissal on the merits, within the spirit of this statute, lack of evidence to warrant a trial and a discharge therefor would have the same practical effect in rebate proceedings as a conviction, which is absurd.

In the 8th paragraph of the answering affidavit the defendant denies, upon information and belief, that on the 22d day of November, 1899, the said Esther Samuels was duly tried in the City Magistrate’s Court, third district, borough of Queens, city of New York, upon the charge of violating the Liquor Tax Law as above set forth, and denies that all proceedings against her were dismissed upo°n the merits as set forth in the 6th paragraph of the petition herein. It may be that, technically considered, the proceedings had were not a trial, inasmuch as they were dismissed at the hearing before the magistrate, in that there was no evidence to warrant or require a trial, but I have stated my reasons for the conclusion that the disposition of the proceedings met the requirements of the statute, and was an acquittal and dismissal on the merits within the purview thereof. Nothing stated in this paragraph of the affidavit shows that there is any dispute as to the facts of an arrest upon McDonough’s complaint, and of an examination and a discharge on the merits, as I interpret the statute, 'and so the denials may be based solely upon the defendant’s interpretation of the law. In People ex rel. Beck v. Coler, (34 App. Div. 167, 170) this court, per Cullen, J., says: “While the rule is strict that all facts averred in answer to an application for a peremptory writ, whether of an affirmative character or merely denials, must be taken as true, the rule is equally strict that ‘Affirmations which are only conclusions of law or fact, or are indefinite or general statements are of no avail and worthless,’ and ‘A denial in gross without stating facts is a mere conclusion.’ (Matter of Freel, 73 N. Y. St. Repr. 331; Matter of Guess, 16 Misc. Rep. 306.) ”

The order should be affirmed.

All concurred.

Order affirmed, with ten dollars costs and disbursements.  