
    The People of the State of New York, Respondent, v. John Andrews, Appellant; The People of the State of New York, Appellant, v. John Andrews, Respondent.
    Where an information was filed before a justice of the peace charging the sale of liquor without a license, and he entered upon an examination ot' the person charged, and pending the proceedings the complainant notified the justice that he had concluded to proceed no further, but to take the matter before the grand jury, and the justice thereupon, without entering an order of discontinuance, sent the papers to the district attorney and took no further action, held, that this did not deprive the grand jury or, upon indictment found, the Court of Sessions of jurisdiction.
    Where a person, acting as agent or steward of an unincorporated association formed for social purposes, upon the request of a member thereof delivers to a person not a member liquors belonging to the association and receives pay therefor, although from the member, the transaction constitutes a sale within the meaning of the excise law (chap. 638, Laws 1857), and, it appearing that neither the steward nor the association had obtained a license therefor, such sale is a violation of its provisions.
    
      People v. Andrews (50 Hun, 591) reversed.
    (Submitted June 31, 1889;
    decided October 8, 1889.)
    These are cross-appeals from a judgment of the General Term of the Supreme Court in the fifth judicial department, entered upon an order made January 11, 1889, which reversed a judgment of the Cayuga County Court of Sessions, entered mpon a verdict convicting the defendant of selling liquors without a license, and granted a new trial.
    The plaintiff appeals from the order of reversal and the defendant from that portion thereof which granted a new trial.
    In January, 1888, the defendant was charged with selling liquor without a license, upon an information filed with a justice of the peace, who entertained the complaint and examined witnesses thereunder. During the examination the attorney for the complainant notified the justice that he had concluded to proceed no further, but would take the matter before the grand jury; the justice thereupon sent the papers to the district attorney without entering a formal order of discontinuance, and took no further action.
    In May the matter was presented to the grand jury and the defendant indicted. Upon the trial of the indictment, and at the conclusion of the evidence, defendant moved 'for his discharge upon the ground that neither the grand jury in the trial court had any jurisdiction of the subject-matter, the complaint having been previously made to the Court of Special Sessions, which motion was denied.
    Upon appeal the General Term held that what took place before the magistrate amounted to a surrender on his part of jurisdiction of the case, and that the Court of Sessions was subsequently invested with jurisdiction thereof, which ruling this court affirms.
    The further facts, so far as material, are stated in' tne opinion.
    
      A. P. Rich for appellant.
    It is no defense to an indictment for retailing liquors that they were owned by other persons. (Laws of 1857, chap. 628, § 13; Martin v. State, 59 Ala. 61; United States v. Wittig, 2 Lowell, 466; State v. Mercer, 32 Iowa, 405 ; Richart v. People, 79 Ill. 85; Marmont v. State, 48 Ind. 21; Commonwealth v. Smith, 102 Mass. 144.) The delivery of liquors by defendant to third persons, which were paid for by members of the club, constituted a sale of the liquors. (Commonwealth v. Ewig, 145 Mass. 119.) The Court of Sessions had jurisdiction. (Code Crim. Pro. 32, § 56; People v. Starks, 17 N. Y. State Rep. 234; People ex rel. v. Westbrook, 12 Hun, 646.)
    
      H. Greenfield for respondent.
    The complaint having first been made to the committing magistrate, the Oyer and Terminer had no jurisdiction to indict or the sessions to try the defendant. (Code Crim. Pro. § 56, subd. 32; §§ 150, 663; People v. Starks, 17 N. Y State Rep. 234; People v. 
      Palmer, id. 341.) The undisputed evidence showed no sale of intoxicants by defendant. (Commonwealth v. Ewig, 13 N. E. Rep. 363 ; Same v. State, 55 Md. 566 ; Nolan v. G. T. R. R. Co., 5 N. Y. State Rep. 256.) The People cannot be heard to say now that the other questions of fact should have been submitted to the jury. (Dounce v. Dow, 64 N. Y. 412; Merritt v. Cole, 14 Hun, 324; Winchell v. Hicks, 18 N. Y. 558; Ormes v. Doucy, 82 id. 443; Dillon v. Cockroff, 15 W. Dig. 367; Frank v. Ireland, 66 Barb. 386; Heath, v. Mahony, 12 W. Dig. 404; Cobil v. Austin, 8 id. 416.) There being no dispute as to the facts of the case upon the trial a new trial was neither necessary nor proper. (Code Crim. Pro. § 543.)
   Danforth, J.

The defendant was accused of violating the excise law (Laws of 1857, chap. 628.) The charge is that on the 10th of July, 1887, at Moravia, in the county of Cayuga, he sold by retail to various persons strong and sj)irituous liquors in quantities less than five gallons without having a license therefor. He was convicted. The General Term of the Supreme Court have reversed the conviction, and ordered a new trial. The plaintiff appeals from the order of reversal, and the defendant appeals from the order directing a new trial.

Two questions are presented: 1st. As to the jurisdiction of the court. 2d. Whether within the meaning of the statute (supra) there was any sale of liquor by the defendant The first question was properly disposed of by the General Term. (50 Hun, 591.) As to the second we are unable to agree with that court.

Upon the trial one S., describing Andrews’ place, says, “ before the 1st of May, 1887, Andrews occupied the premises as a saloon. The front room is used for a fruit, confectionery and tobacco store. Back of that and partitioned off is a room with a bar, table and chairs.” He also says, I got whisky and ale of Andrews in the back room and paid him for it. Some I drank there and some I took home and drank. Paid Mm ten cents for that I drank there and a shilling for that I took home.” C., a minor attending school, was often at this place and drank both ale and whisky, and paid for it. Bought it for others and paid for it. Another person had ale and whisky there, and on one occasion bought half a pint of whisky, for which -he paid twenty-five cents, and carried it away. Ohase drank several kinds of liquor—gin, whisky and beer, and paid for it; ten cents for gin and whisky and five cents for beer. Jones says “ the place was a saloon soon after it was built, and Andrews has always run it.” Jones frequently drank there; bought whisky by the glass and paid Andrews or Keeler for it. Keeler testified that he was employed by the defendant at this place and paid by him. He says: “I wait on customers to cigars, fruits and confectionery, and also wait on members of the club. Since July tenth last I have delivered both ale and whisky to members of the club there by the drink, and took pay therefor in cash. Have done this a good many times.” “ The sales that have been made by me have all been made by Andrews’ direction.”

Hpon cross-examination by defendant these witnesses described themselves as members of the “Valley Social Club,” and it appeared that when persons not members came in with a member and called for liquor it was -supplied, but payment made by the member. It was shown that neither Andrews nor -the club had a license. It was refused to Andrews in May, 2 887, and on the 1st of Jrme 1887, the club was organized. At the close of the plaintiff’s case the defendant asked to be discharged upon the ground that there was no proof of a sale of intoxicating liquors, ale or wines by him, and being refused, went into evidence. Andrews, the defendant, testified that the description of the place by witness S., was correct; that" in the front room he had cigars, tobacco, fruit and confectionery, and that was his own private business; that the room back of that was leased to the “Valley Social Club ” by himself and wife for the term of one year from the 23d of May, 1887. He was steward of that club. He said: “ I have heard the witnesses sworn on the part of the People. Heard them testify that they were members of the club and procured drinks at that place. That I do not deny in any way. None of the drinks had by any of the witnesses was my property, nor did I receive any pay of my own therefor whatever. The liquors did not belong to me, they belonged to the men that drank them. They were not bought in my name, but in the name of the Valley Social Club, and bills were rendered to that organization for them. The club was organized about the 1st of June, 1887, with William D. Harris as president and six trustees.” It further appeared that Andrews was treasurer and that all the moneys of the club came to his hands, and had done so since its formation. The club was not incorporated. Twenty or twenty-five men met together and made the arrangements. Others subsequently joined, so that the present number is five hundred. Andrews took the rent and paid the wages of himself and Keeler. This he said was in pursuance of a standing order of the officers- of the club. The matter of dividends has been considered by the club, and it was upon motion decided to use the money on hand to defend this suit, and make a dividend of what was left when the suit is ended.

The trial judge, in submitting the case to the jury, assumed that the liquors belonged to the club, and waiving the question as to the liability of the defendant for liquors sold or delivered to the members of the club, said, in substance, “ that where .any person, acting as agent or steward of such an association, does, upon request of a member, deliver to a person not a member, liquors belonging to that association, and takes pay from it, although from that member, the transaction constitutes a sale within the meaning of the statute, and the offense charged in the indictment is complete.” In that we find no error. The liquor belonged to the association, not a legal entity as a corporation, but as joint owners or tenants in common. I do not say that circumstance distinguishes this case from one where the liquor is owned by an incorporated club; that need not be considered; it is the character in which they act. Five hundred men buy a quantity of liquor, they store it and appoint an agent to manage it. On the application of one of the five hundred the agent separates a small quantity from the mass of liquor, fixes its value, delivers the quantity so separated as directed, and receives its value or price in money. What is that bu* a sale ? It is not an evasion of the statute, it is a violation of it. We have before us the scheme of the association and its by-laws, and can see that the transaction was not in conformity to either. We are, therefore, not called upon to say whether if it had been, it would or not have relieved the defendant. The scheme, as declared in the eighth by-law, is that “ the exj>enses of this club shall be sustained by voluntary contributions to its funds by the members, and the refreshments furnished shall be enjoyed by the members in proportion to the amount contributed by each. Such contribution shall be receipted for by the treasurer by certificates, and as a means of adjusting the expenses equitably between the members, such certificates shall be surrendered to the employes of the club as such refreshments are consumed by such members.”

In the case before us no certificates were given and none, of course, surrendered. Nothing was done by means of which the equities between the members could be adjusted. Nothing remained to be done. The transactions were closed at once. The purchasing money went into the hands of the treasurer with no other ceremony than attended a similar purchase when, instead of filling that character, he stood behind the same bar as a saloon-keeper. Liquor was purchased ; liquor was paid for by money. The occurrence was not exceptional, but the members were dealt with on a cash basis, and whether men or boys received no other consideration than is accorded to ready-money customers at a public bar. Whatever may be the merit of the scheme prescribed by the organization it has no effect here. It did not control or govern the parties. We are referred to the case of the Commonwealth v. Ewig (145 Mass. 119) as an authority to sustain the defendant’s appeal. In that case the defendant was convicted because the scheme on which he relied was-deemed an evasion of the license law. We do not regard that question as before us, and if • there are observations, in the course of the opinion of the learned court below, at variance with those already expressed, we cannot yield to them. We put our decision upon the sole ground that the acts of the defendant were, as charged in the indictment, in violation of our statute, and that upon the evidence he was rightfully convicted.

The judgment of the General Term should, therefore, be reversed, the defendant’s appeal dismissed and the judgment of the Goiu-t of Sessions affirmed.

All concur.

Judgment accordingly.  