
    The People ex rel. William M. Duncan, Relator, v. Maynard M. Clement, as State Commissioner of Excise of the State of New York, Respondent.
    (Supreme Court, New York Special Term,
    May, 1909.)
    Intoxicating liquors — Surrender or transfer of license and change of place of business — Surrender and rebate — Eight to rebate — Conviction of employee.
    It is a general rule that the holder of a liquor tax certificate is bound by a violation of the statute by his servant or employee whether or not he was present and whether or not such violation was contrary to his express directions; and, where after the surrender of his certificate an employee of the holder is convicted of a violation of the statute during the excise year and prior to such surrender, the certificate holder cannot compel payment of the rebate.
    Motion for a writ of mandamus to compel the payment of rebate on a liquor tax certificate assigned to plaintiff.
    Gleason & Rooney, for relator.
    Herbert H. Kellogg, for respondent.
   Dayton, J.

Eelator moves for a writ of mandamus to compel payment of rebate on a liquor tax certificate. Eespondent moves to quash the proceeding and to dismiss the petition on the ground that no cause for relief is stated. This liquor tax certificate was surrendered when $985 was due on the return thereof. At that time neither the holder nor Duncan, his assignee, had personally been convicted of any violation of, nor had either of them personally violated, any provision of the Liquor Tax Law during the excise year for which such certificate was issued. Mo proceeding for the cancellation of such certificate, nor action for penalties, nor other steps were taken against the holder or Duncan by the State Excise Department. Payment of the rebate is withheld by reason of the conviction of an employee of the holder occurring prior to the surrender of the certificate! The relator contends that as the holder was not a party to the violation, which was committed against his express instructions, the right of his assignee to this rebate cannot be defeated. In addition to this, he claims that, as section 25 (now section 24) of the Liquor Tax Law authorizes the commissioner to withhold payment of rebate for thirty days, and in the interim to take cancellation proceedings, and as no such proceeding was taken, he may not refuse this payment. If, however, the conviction of the certificate holder’s employee prior to the surrender of the certificate justifies the refusal to pay, what need to consider the failure of the commissioner to take proceedings? As I read the decisions on this subject, their trend is to bind the certificate holder for violations of this statute by his servants and employees, whether or not the certificate holder was present, and whether or not such violations were contrary to express instructions of the certificate holder. This construction of the statute places responsibility where it properly belongs and upholds the enforcement of a police regulation in accordance with legislative intent. The burden being upon the holder of a certificate to establish, as a condition precedent, that he has not violated any provision of the Liquor Tax Law during the excise year for which the certificate was issued (People ex rel. Munch Brewery v. Clement, 117 App. Div. 589), and it being conceded that the employee of relator’s assignor was convicted of such violation during the excise year and prior to the surrender of said certificate, the motion to quash this proceeding and to dismiss the petition herein is granted, with ten dollars costs.

Motion granted, with ten dollars costs.  