
    Matter of the Petition of James C. Grindrod, to Revoke Liquor Tax Certificate No. 18535, Issued to and Held by Joseph Kerwin.
    (Supreme Court, Westchester Special Term,
    August, 1915.)
    Liquor Tax Law — revocation of liquor tax certificate — consents of property owners required — when petition to revoke must be granted.
    Where in a proceeding for the revocation of a liquor tax certificate it appears that traffic in liquors was not actually carried on in the premises on March 23, 1896, and that they were not occupied as a hotel on said date, but that they were in fact not used for such traffic for about a year and eight months prior to the filing of the petition for the liquor tax certificate in question, and during several months of that period were used as a grocery store to the knowledge of the owner and with her acquiescence in the sense that she received rent during that period, it must he held that there was an abandonment of the premises for liquor purposes and that they were not “ continuously occupied ” for such traffic within the meaning of the third exception specified in section 15(8) of the Liquor Tax Law requiring property consents.
    No property consent ever having been obtained and filed for the liquor tax certificate, the consent of petitioner herein who was the owner of premises occupied exclusively as a dwelling within the three hundred feet limit was necessary, and the petition to revoke the liquor tax certificate must be granted though the motive of petitioner was to get rid of a competitor and destroy a rival in-business.
    
      Proceedings to revoke a liquor tax certificate.
    Sydney A. Syme, for petitioner.
    Bernstein & Quinn, for defendant.
   Tompkins, J.

The petitioner is the owner of a building used exclusively as a dwelling house, situated within three hundred feet of .the premises owned by his mother-in-law, and upon which the respondent, Joseph Kerwin, the petitioner’s brother-in-law, carries on business under the liquor tax certificate sought to be revoked in this proceeding. No property owners’ consents to the trafficking in liquors at said premises were ever obtained or filed, and prior to the erection and occupation as a dwelling of the petitioner’s building there was no need of any consent, because there was no building used exclusively as a dwelling within either 200 or 300 feet of the respondent’s premises. The petitioner’s dwelling house was completed a short time prior to the respondent’s petition for a liquor tax certificate in May, 1915, and the question now before the court is whether the petitioner’s consent was necessary. I think it was.

The case does not come within any of the three exceptions of subdivision 8 of section 15 of the Liquor Tax Law. These exceptions are as follows:

1. Where such traffic in liquor was actually lawfully carried on on said premises on the 23d day of March, 1896.

2. Where said premises were “occupied as a hotel ” on said last mentioned date, notwithstanding such traffic in liquor was not then carried on thereat.

3. Whenever the consents shall have been obtained and filed as required by law at the time of such filing, and then only “ so long as such premises shall be continuously occupied for such traffic.”

Traffic in liquor was not actually lawfully carried on in said premises on the 23d day of March, 1896. Said premises were not occupied as a hotel on that date. The premises had not been continuously occupied for such traffic down to the date of the respondent’s petition. The fact is that the premises were not used for traffic in liquor for about one year and eight months, prior to May, 1915, when the respondent petitioned for and received the certificate in question, and during several months of that period the premises were used as a dry-goods store, with the knowledge of the owner, and with her acquiescence in the sense that she received the rent during that period.

I think that under these circumstances it must be held that there was an abandonment of the premises for liquor purposes, and that they were not “ continuously occupied ” for such traffic, within the meaning of the third exception to the provisions of the law, requiring property consents.

The respondent contends that there was no abandonment by the owner and no surrender by her of her property rights in said premises, for liquor purposes, and that the acts of her tenant, who was the petitioner herein, were without her authority, and in spite of her protests, and that the conduct of the tenant could not deprive the premises of the right to traffic in liquors, which had previously become attached thereto. The trouble with this claim is that the courts have held that the consent of the owner is only necessary to accomplish an abandonment, where the traffic was carried on at the premises on March 23, 1896, or where the premises were on that date occupied as a hotel. Matter of Hawkins, 165 N. Y. 188; People ex rel. Sandman v. Brush, 179 id. 93; Matter of Kessler, 163 id. 205.

But even if the premises were not abandoned, and are to be considered as having been continuously occupied for liquor purposes, I think the petitioner’s consent was necessary for the reason that no property consent had ever been obtained and filed for the respondent’s premises.

The third exception named in subdivision 8 of section 15 makes consents unnecessary only when the premises have been “ continuously occupied for such traffic ” after consents shall have been obtained and filed, as required by law at the time of filing.” It seems to me that the plain reading and meaning of this statute is, that where no consent has been obtained, and filed, and the premises were not used on March 23, 1896, as a hotel or for trafficking in liquors, the consent of the owner of premises occupied exclusively as a dwelling within 300 feet is necessary.

For these reasons, I think the respondent’s certificate must be revoked, but without costs. I do not like the motive that prompted the petitioner-to commence and prosecute this proceeding, but, if my conclusions as to the law are correct, I suppose the petitioner’s motive is not material. The proceeding was not instituted to protect a residential neighborhood, or by the owner of property opposed to the liquor business. The petitioner is the proprietor of a saloon or hotel next door to the respondent’s, and this proceeding is to get rid of a competitor, and destroy a rival in business, and the petitioner’s conduct with respect to his mother-in-law’s property and his brother-in-law’s business does not commend itself to the court, and for that reason the order will be made without costs, and with a stay pending an appeal to the Appellate Division, if the respondent wishes to take an appeal, upon the respondent stipulating to bring such appeal on for argument at the October, 1915, term.

Ordered accordingly.  