
    In the Matter of the Petition of George E. Green, as Successor to William W. Farley, as State Commissioner of Excise, Appellant, for an Order Revoking and Canceling Liquor Tax Certificate No. 5,239 Issued to Cristina Di Iorio, Respondent.
    First Department,
    March 3, 1916.
    Intoxicating liquors — notice of abandonment — failure to file notice transferring trafile from other premises — cancellation of new certificate — validity of assignment of certificate as collateral — power of attorney in fact to execute and file notice of abandonment — duties of State Commissioner of Excise — estoppel.
    Where, at the time a liquor tax certificate was issued in the borough of The Bronx the ratio of population to the number of liquor tax certificates issued therein under subdivision 1 of section 8 of the Liquor
    
      Tax Law was less than 750 to 1, traffic in liquors under said certificate became unlawful upon the filing later in the same month by the holder of another certificate of a notice of abandonment of such premises in favor of other premises, no notice of abandonment having been filed in favor of the first premises as required by subdivision 9 of section 8 of the Liquor Tax Law, which provides that it shall be unlawful to traffic in liquors at the abandoned premises “unless there shall subsequently be filed another notice of abandonment * * * which notice shall describe such first abandoned premises as the premises in which it is intended to again carry on such traffic in liquors.”
    The validity of an assignment of a liquor tax certificate as collateral security under a power of attorney cannot be attacked collaterally by the holder of a certificate for the same premises who was not a party to such assignment.
    Upon a proceeding for. the cancellation of a liquor tax certificate the power of an attorney in fact for the holder of another certificate for the same premises to execute and file a notice of abandonment thereunder must be conclusively presumed.
    The duties of the State Commissioner of Excise are purely ministerial, and on a proceeding for the cancellation of a liquor tax certificate he has no authority or jurisdiction to pass upon the equitable or contract rights in reference to a certificate not affecting the legal title.
    The mere issuance of a liquor tax certificate which is subsequently rendered void under the statute does not estop the Commissioner from proceeding to revoke the same.
    Appeal by George E. Green, as State Commissioner of Excise, from, an order of the Supreme Court, made at the Bronx Special Term and entered in the office of the clerk of the county of Bronx on the 20th day of September, 1915, denying his motion to cancel a liquor tax certificate.
    
      Louis M. King, for the appellant.
    
      DomenicJc A. Montani, for the respondent.
   McLaughlin, J.:

On September 30, 1913, a liquor tax certificate was duly issued to one John Tino, pursuant to subdivision 1 of section 8 of the Liquor Tax Law (Consol. Laws, chap. 34 [Laws of 1909, chap. 39], as amd. by Laws of 1909, chap. 281), authorizing him to traffic in liquors for the year ending September 30, 1914, at 245 East One Hundred and Fifty-second street in the borough of The Bronx. On January 15, 1914, there was filed with the Special Deputy Commissioner of Excise for the boroughs of Manhattan and The Bronx an assignment of this certificate as collateral security for the payment of money loaned or advanced and also a power of attorney executed by Tino to H. Koehler & Co. On the same day Tino, by H. Koehler & Co., his attorney in fact, filed a notice of abandonment of premises 245 East One Hundred and Fifty-second street in favor of premises 237 East One Hundred and Fifty-first street. On September 30,1914, Tino, by the same attorney in fact, filed a notice of abandonment of premises 237 East One Hundred and Fifty-first street in favor of premises 370 Morris avenue, and on November 25,1914, one Alberto Faiello applied for and received a liquor tax certificate authorizing him to traffic in liquors at the latter place for the excise year 1914-1915. Faiello, from November 25/1914, down to the time of the trial, engaged in the traffic in liquors at 370 Morris avenue under that certificate.

Prior to the filing of the last notice of abandonment and on September 8, 1914, the respondent, Di Iorio, applied for and on September 22, 1914, received a liquor tax certificate for the term commencing October 1,1914, authorizing her to traffic in liquors at 237 East One Hundred and Fifty-first street. It is this certificate that the petitioner seeks to have canceled. The trial court denied the application to cancel and the appeal is from that order.

The statute applicable to the conceded or established facts is subdivision 9 of section 8 of the Liquor Tax Law (added by Laws of 1910, chap. 494, as amd. by Laws of 1911, chap. 298). This subdivision of the statute provides, among other things, that no liquor tax certificate shall be issued for traffic in liquors under subdivision 1 of section 8 in any borough unless or until the ratio of population therein to the number of certificates issued under subdivision 1 of section 8 shall be greater than 750 to 1, and then only pursuant to the provisions of such subdivision 9 of section 8 of the statute. It also provides means by which the right to traffic in liquors under subdivision 1 of section 8 may be transferred from one location to another by filing a written notice of abandonment for the traffic at one place in favor of new premises to which it is intended to transfer the same. It also prescribes that after the filing of a notice of abandonment which is thereafter made effectual by application for a new certificate for and traffic in liquors at the new premises, it shall be unlawful to traffic in liquors under subdivision 1 of section 8 at the abandoned premises “unless there shall subsequently be filed another notice of abandonment * * * which notice shall describe such first abandoned premises as the premises in which it is intended to again carry on such traffic in liquors.”

It is conceded that at the time the Di Iorio certificate was issued, and down to the time of the trial, the ratio of population in the borough of The Bronx to the number of liquor tax certificates issued therein under subdivision 1 of section 8 was less than 750 to 1, and no claim is made that at any time since September 30, 1914, a notice of abandonment in favor of 237 East One Hundred and Fifty-first street has existed. This being so, it necessarily follows that traffic in liquors at those premises became unlawful upon the filing of the notice of abandonment on September 30, 1914. The issuance of the certificate sought to he canceled conferred no rights on Di Iorio to traffic in liquors there, and for that reason the court should have revoked and canceled the same. (Matter of Farley [Bales Certificate], 154 App. Div. 282; affd. on opinion below, 208 N. Y. 595; Matter of Farley [Vorndran Certificate], 170 App. Div. 400.) These authorities, it seems to me, are directly in point and required the trial court to grant the petition and cancel the certificate.

The respondent, however, urges that H. Koehler & Oo. had no right to execute and file the notice of abandonment on September 30, 1914; that prior to that date it had been paid in full the amount of money advanced or loaned and for which the certificate was assigned as collateral security; hence, the notice of abandonment filed by it had no legal effect. The trouble with this contention is that the validity of the Tino assignment and the right of Koehler & Oo. under its power of attorney cannot be attacked collaterally •— certainly not by Di Iorio, who was not a party to the same. That could only be done by the parties to the assignment, or their representatives, or by the judgment of a court of competent jurisdiction in an action in which its validity was directly brought in issue. The power of Koehler & Co., therefore, as attorneys in fact for Tino, to execute and file the notice of abandonment thereunder must, for the purpose of this proceeding, be conclusively presumed.

The duties of the State Commissioner of Excise are purely ministerial (People ex rel. Hope v. Masterman, 209 N. Y. 182), and he has no authority or jurisdiction to pass upon the equitable or contract rights in reference to a certificate not affecting the legal title. (People ex rel. Spang v. Carey, 167 App. Div. 949.) In the present case, therefore, it was the duty of the petitioner to receive and file the notice of abandonment and to issue a new certificate to Faiello for 370 Morris avenue.

Nor is there any merit in the respondent’s contention that the petitioner is estopped from seeking to revoke her certificate. When Di Iorio made her application she was, on the records and facts, as they then existed, entitled to a certificate and the petitioner had no alternative but to issue one to her. But she then knew, or might have known, that by reason of the filed assignment and power of attorney to Koehler & Co., if a certificate were issued to her it would be rendered void by the subsequent filing of a notice of abandonment by Koehler & Co. of 237 East One Hundred and Fifty-first street. When, therefore, a notice of abandonment of 237 East One Hundred and Fifty-first street was filed by Koehler & Co., and a new certificate issued for 370 Morris avenue, and the new certificate holder, Faiello, complied with the requirements of the statute by there engaging in liquor traffic thereunder, the traffic in liquors at 237 East One Hundred and Fifty-first street became illegal and the petitioner was bound to apply for the revoca, tion of the Di Iorio certificate. The mere issuance of a certificate which subsequently is rendered void under the statute works no estoppel, nor is Matter of Farley v. Miller (216 N. Y. 449), upon which respondent relies, authority for such a proposition.- In that case the right to revoke a certificate on the ground that answers to questions in the application were false was denied, it appearing that notice of abandonment had been filed but had become null and void because not acted upon as expressly required by the statute. It also there appeared that the certificate was issued after the notice of abandonment had become so null and void, and after a full disclosure of all the facts and circumstances surrounding the application had been made to the officer issuing the certificate, who directed the applicant to answer in the negative the question, “Has a notice of abandonment * * * been heretofore filed ? ” The court held that under such circumstances the State, through its agent, was estopped from destroying the property of the applicant on the ground that the answer was false.

If the foregoing views be correct, then it follows that the order appealed from should be reversed, with ten dollars costs and disbursements, and the application to revoke liquor tax certificate Ho. 5,239 issued to Di lorio for the year 1914-1915 should be granted.

Clarke, P. J., Laughlin, Scott and Page, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and application granted.  