
    First Appellate Department,
    June Term, 1903.
    Reported. 84 App. Div. 292.
    Patrick W. Cullinan, as State Commissioner of Excise of the State of New York, Respondent, v. The Fidelity and Casualty Company of New York, Appellant, Impleaded with Julius Stein.
    Bond—Given upon the granting of a liquor tax certificate—The use of any part of a hotel for immoral purposes is a violation of its condition— What constitutes a submission of questions of fact to the trial judge.
    Where a bond, given to enable the principal mentioned therein to procure a certificate authorizing him to traffic in liquors in a hotel, is conditioned that the principal will not suffer or permit “such premises to become disorderly,” the condition applies to the entire hotel, and if the whole building, with the possible exception of the room in which the bar is located, is used for immoral purposes, the condition of the bond is violated.
    Where the plaintiff in an action which is being tried before a jury moves for the direction of a verdict and the defendant moves for a dismissal of the complaint and neither party requests the submission of any question to the jury, the parties will be deemed to have agreed to allow the trial justice to pass upon the questions of fact.
    Appeal by the defendant, The Fidelity and Casualty Company of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 15th day of January, 1903, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 31st day of December, 1902, denying the said defendant’s motion for a new trial made upon the minutes.
    
      
      Charles C. Nadal, for the appellant.
    
      William E. Schenclc, for the respondent. •
   Ingraham, J.

On April 26, 1901, the defendant Julius Stein made an application for a liquor tax certificate to sell liquor upon the premises No. 232 East Ninth street, in the city of New York. To obtain such a certificate the applicant is required to make application therefor upon a blank furnished him which contains certain questions as to the character of the business he intends to carry on and the premises upon which it is to be carried on, which he is required to answer.

This blank that he filled up contained the following inquiries: 6. Under which subdivision of section 11 of the Liquor Tax Law is the traffic in liquors to be carried on? (Answer) One. 7. What other business is to be carried on in connection therewith, or on the same premises, by the applicant or any other person? (Ans.) Hotel. * * * 12. Does the applicant intend to carry on a tona -fide hotel on such premises? (Ans.) Yes. * * * 16. Does such hotel conform to the laws, ordinances, rules and regulations * * of the State or locality pertaining to the building, fire and health department in relation to hotels and hotelkeepers? (Ans.) Yes.” Question 17 relates to the number of bedrooms in the hotel, and the applicant said that there were ten bedrooms above the basement, exclusive of those occupied by the family and servants. Question 18 also relates to the number of bedrooms in the building and the dining room and kitchen accommodations therein. This application for a liquor tax certificate was received April 26,1901, the tax of $800 was paid, and certificate No. 5,062 issued April 29, 1901, under subdivision 1, section 11 of the Liquor Tax Law, at premises No. 232 East Ninth street, in the city of New York.

In pursuance of section 18 of the Liquor Tax Law (Laws of 1896, chap. 112, as amd. by Laws of 1897, chap. 312) the appellant executed and filed with the Special Deputy Commissioner of Excise a bond by which the defendant Julius Stein, as principal, and the defendant the Fidelity and Casualty Company of New York, as surety, “ are held and firmly bound unto the People of the State of New York in the penal sum of Sixteen Hundred Dollars ($1,600), for the payment of which sum, well and truly to be made, we, the said principal and surety, bind ourselves, our heirs, executors, administrators, successors and assigns, respectively, jointly and severally, firmly by these presents.

“ Dated this First day of April, 1901.

“ Whereas, the above bounden principal is about to apply for a Liquor Tax Certificate in the sum of Eight Hundred Dollars ($800), authorizing said principal to traffic in liquors at 232 East 9th street in the City of Hew York, County of Hew York, i:" * * State of Hew York, under subdivision One of Section 11 of the Liquor Tax Law of the State of Hew York.

“Now, therefore, the conditions of this obligation are such that if the said liquor tax certificate applied for is given unto the said principal, and the said principal will not, while the business for which such liquor tax certificate is given shall be carried on, suffer or permit * * such premises to become disorderly, and will not violate any of the provisions of the Liquor Tax Law, or any act amendatory thereof or supplementary thereto, * then the above obligation to be void, otherwise to remain in full force and virtue.”

It was only upon the filing of this bond that the certificate was issued. The bond recites that the principal was about to apply for a liquor tax certificate under subdivision 1 of section 11 of the Liquor Tax Law of the State of Hew York, and the liquor tax certificate issued on the application was based upon the filing of this bond by the defendants. In the application the principal distinctly stated that the business that he was to carry on was the business of a hotel upon the premises in question; that the applicant intended to carry on a tona fide hotel on said premises; that such hotel conformed to the laws, ordinances, rules and regulations relating to hotels and hotelkeepers; that the building contained at least ten bedrooms above the basement and conformed to all the requirements; and it was upon this application that the certificate was issued.

Subdivision 1 of section 11 of the Liquor Tax Law (Laws of 1896, chap. 112, as amd. by Laws of 1897, chap. 312) provides for a tax “upon the business of trafficking in liquors to be drunk upon the premises where sold, or which are so drunk, whether in a hotel, restaurant, saloon, store, shop, booth or other place.” Section 17 of the act (as amd. by Laws of 1897, chap. 312, and Laws of 1900, chap. 367) provides that every person liable for the tax under subdivision 1 of section 11, on or before the first day of May in each year, shall prepare and make upon the blank which shall be furnished by the county treasurer of the county, or the Special Deputy Commissioner of Excise, a statement signed and sworn to by the applicant which shall state: “9. If the traffic in liquors is to be carried on in connection with the business of keeping a hotel, * * * that all the requirements of section thirty-one hereof, defining hotels, have been complied with.” Section 31 of the act (as amd. by Laws of 1897, chap. 312) provides that “the holder of a liquor tax certificate under subdivision one of section eleven of this act who is the keeper of a hotel may sell liquor to the guests of such hotel * * * with their meals or in their rooms therein, except between the hours of one o’clock and five o’clock in the morning, * * and the term ‘hotel’ as used in this act shall mean a building regularly used and kept open as such for the feeding and lodging of guests,” and shall contain other requirements specified.

The bond was to be void only upon the condition that the principal would not, while the business for which such liquor tax certificate is given shall be carried on, suffer or permit such premises to become disorderly. “Such premises” relate to the premises upon which the principal is authorized by the payment of the tax to carry on the business of trafficking in liquors, and “ such premises” are specified in the application. This application was for the right to traffic in liquors in this building used for a hotel. When the certificate was issued under this application the principal became entitled to traffic in liquors in the whole “hotel,” including the rooms occupied by the guests of the hotel, and the obligation of the defendant was that the principal would not while the business was being carried on for which the liquor tax certificate was given, suffer the premises upon which he was authorized to carry on such business to become disorderly. That the whole building, with the possible exception of the room in which the principal’s bar was located, was used for immoral purposes is clearly established; but if there was any question of fact, the right to have it submitted to the jury was waived by the defendant’s asking to dismiss the complaint, and the plaintiff’s asking for the direction of a verdict, without a request to submit any question of fact to the jury. “ The motion to dismiss the complaint was equivalent to a request to direct a verdict in favor of the defendants; such being the case, the parties by the motions made, each one of them virtually agreed to submit the question of fact to the judge; and, under such circumstances, if there is any evidence to uphold the decision, it is not error.” (Dillon v. Cockcroft, 90 N. Y. 649. See also, Westervelt v. Phelps, 171 id. 212.)

The judgment and order are, therefore, affirmed, with costs.

Patterson, O’Brien, Hatch and Laughlin, JJ., concurred.

Judgment and order affirmed, with costs.  