
    Supreme Court, Onondaga Special Term,
    December, 1898.
    Reported. 25 Misc. 638.
    Matter of the Petition of Henry H. Lyman, as State Commissioner of Excise, for an Order Revoking and Cancelling Liquor Tax Certificate No. 31,357, Issued to Jacob Dieffenbacker.
    Liquor Tax Law—'Illegal sale on a piazza which was possibly on State land.
    Where a person authorized to traffic “in liquors in quantities less than five wine gallons, no part of which shall be drunk on the premises, where sold or in any outbuilding, yard or booth or garden appertaining thereto or connected therewith," sells liquor in his building adjoining the towpath of the canal and permits the purchaser to drink it on a piazza fronting on the canal, and formed by the projection of the upper story of his building over the lower one, and which piazza was the usual approach to his store and bar, the statute is violated; and the fact, that the piazza may be on State lands and has been used by the State authorities as a place to deposit tools temporarily, is not a defense, where the State has taken no steps to remove the piazza.
    Petition for the revocation of a liquor tax certificate.
    Mead & Stranahan, for petitioner.
    E. La Grange Smith, for defendant.
   Hiscock, J.

The following facts are undisputed: The defendant took out and at the time of the occurrences hereinafter mentioned held a liquor tax certificate which authorized him to traffic “ in liquors in quantities less than five wine gallons, no part of which shall be drunk on the premises where sold or in any outbuilding, yard or booth or garden appertaining thereto or ..connected therewith.” His premises consisted of a two and one-half-story frame building situate adjacent to the towpath of the canal. The upper story projected beyond the lower one, thus roofing and inclosing a piazza upon the front which adjoined and led to the lower one. In this lower one was defendant’s store and place of business wherein he had a bar. This piazza was sometimes used by State authorities or others as a place of temporary deposit of tools or goods, but it was the .usual if not only means of approach to defendant’s place of business. Upon one or more of the occasions in question agents of the excise department stepped up to defendant’s bar and asked for and received glasses of whiskey, which they were told to, and did step out upon the piazza and drink, then returning to the bar and paying therefor. This course of business had, it is stated in defendant’s brief, been commonly pursued by him for two years.

In addition to these facts it is claimed by defendant that this piazza was in whole or part upon State land, and by the petitioner that some of the liquor was drunk at the bar and not upon the piazza. I propose to consider the case upon the latter point, however, in the aspect most favorable to the defendant.

He urges that the piázza was not part of his premises and was not any outbuilding, yard, booth or garden appertaining thereto ■or connected therewith.” This contention, however, seems to call for altogether too narrow a construction of the statute. No reasoning can make it much plainer than the mere statement of the facts does, that this piazza was connected with, and used as, and was a part of defendant’s premises. If it was upon the State land removal thereof could perhaps be enforced, but until that was done, and certainly as against everybody except the State, proceeding in a lawful manner it was within the possession of and under the control of defendant. The fact that by his license, and without compensation, others were occasionally permitted to use it was not sufficient to destroy this proprietorship.

The prayer of the petition is, therefore, granted, with costs.

Petition granted, with costs.  