
    Supreme Court, New " York Special Term,
    February, 1900.
    Reported. 30 Misc. 515.
    Matter of the Application of Adolph Halbran, for an Order Revoking and Cancelling Liquor Tax Certificate Issued to Odille C. Canavan.
    Liquor Tax Law—Revocation of license invalid originally—Reference.
    Any citizen, although not a taxpayer, is authorized (Laws of 1896, chap. 112, § 28, subd. 2) to petition for the revocation of a liquor tax certificate where he claims that the holder was not originally entitled to it, and the fact that the holder has never been convicted of a violation of the statute is not material and affords him no defense.
    Where the answer" of the holder puts in issue a material allegation of the petition, a reference should be directed in order to determine the Issue.
    
      Application for an order revoking and cancelling a liquor tax certificate.
    Lyman B. Bunnell, for petitioner.
   Beekman, J.

The petitioner in this proceeding asks for an. order revoking and canceling a liqnor tax certificate on two grounds: (1) Because the applicant therefor gave a false answer-to “ question 16 ” in the statement filed at the time the certificate-was applied for, and (2) Because the consents of two-thirds of the owners of the private residences within 200 feet of the-premises where the proposed traffic in liquors was to be carried, on had not been obtained and filed as required by law. With respect to the first ground, the application must be denied. The-petition doés not state what “ question 16 ” was, nor does it give-the answer claimed to have been false. As neither the original statement nor a copy of the same forms any part of the moving-papers, the petition is plainly defective, as it fails to comply with the statute which requires the petitioner to state the facts, on which his allegations are based, Laws of 1896, chap. 112, § 28, subd. 2. This criticism, however, does not apply to the other ground above referred to, and, as the answer of the respondent puts it in issue, there must be a reference to take proof upon the-question. As the respondent contends that this proceeding has. been instituted without the authority of the petitioner, evidence may be taken, before the referee upon this point also. The reference should proceed as far as possible from day to day. Counsel for the respondent has urged that, under Matter of Lyman, 160 N. T. 96, the petition should be dismissed, on the ground that such a proceeding as this cannot be entertained until after a conviction of the respondent has been had in a criminal prosecution for the violation of the law which is complained of. In this he is quite mistaken. Whatever was there decided by the Court of Appeals in this connection was carefully limited to cases where the motion for a revocation of the certificate-is based upon a violation of the law occurring subsequent to the issuing of the certificate and subjecting it to forfeiture. Such a case as this, which rests upon the general ground that the respondent was not entitled to receive or hold the certificate when it was delivered, is plainly not within the decision, as: the opinion of the court clearly shows. Still another objection was made to this proceeding on the ground that the petitioner, although averring that he is a citizen of the State of New York, has failed to show that he is a taxpayer. A reference, however, to section 28, subdivision 2, of the Liquor Tax Law, under which this proceeding was instituted, shows that no other qualification is required than that the moving party should be a citizen of the State. It is only in the case of a proceeding instituted under section 29 of the law that a private' party making the application there authorized must be a taxpayer. The two proceedings are ■different in character and purpose, and the statutory provisions with respect to one do not apply to or govern the other. The ■counsel for the respondent cites in support of his claim the case of People ex rel. Smaw v. McGowan, as reported in 60 N. Y. Supp. 407. But there the proceeding was one brought under section 29 of the statute and not under subdivision 2 of section 28, as is the case here. It is true that in the opening words of the opinion as .above reported, the latter statute is referred to as the one under which the proceeding there was commenced, but a reference to the official report of this case (44 App) Div. 30) shows that the words Section 29 of the Liquor Tax Law ” are used in place of the words “Subdivision 2, section 28, Liquor Tax Law.” Of ■course the official report must control. The point thus raised is) therefore, not well taken.

Ordered accordingly.  