
    First Appellate Department,
    January Term, 1902.
    Reported* 68 App. Div. 119.
    In the Matter of the Petition of Patrick W. Cullinan, as State Commissioner of Excise, Appellant, for an Order Revoking and Canceling Liquor Tax Certificate Issued to Bertha Dick and Transferred to Solomon Schepper and Jacob Dick in Their Firm Name of Schepper & Co.; Jacob Dick, Respondent.
    Liquor tax certificate—Motion to cancel it because a door leading to the saloon was kept open on Sunday—Service of the order to show cause upon the person in charge of the premises.
    Where a motion for the cancellation of a liquor tax certificate is made upon the grounds, first, that the holders thereof had violated clause “H” of section 31 of the Liquor Tax Law (Laws of 1896, chap. 112, as amended by Laws of 1897, chap. 312), by keeping screens, etc., in front of the windows of the premises during the hours when the sale of liquors was prohibited; and, second, that they had violated clause “G” of said section, in that they had, on a certain Sunday, kept open a door leading to the room where the liquors were sold, when it was not necessary for any of the purposes mentioned in the statute; and, third, that they had violated clause “A” of said section by selling intoxicating liquors on a certain Sunday, and, upon the hearing of the motion, the petitioner fails to prove the first and third charges, but does prove the second charge, conclusively, it is the duty of the court to grant an order canceling this certificate.
    In a proceeding for the cancellation of a liquor tax certificate, held by a firm composed of two members, personal service, pursuant to instructions from the court, of the order to show cause why the certificate should not be canceled, and of the petition and affidavit on which it was granted, upon the person in charge of the premises designated in the certificate,, is sufficient to give the court jurisdiction to cancel the certificate against both members of the firm, notwithstanding the fact that one of them does, not appear on the motion except for the purpose of objecting to the jurisdiction of the court.
    Appeal by the petitioner, Patrick W. Cullinan, as State Commissioner of Excise, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of May, 1901 denying the petitioner’s motion to revoke and cancel a liquor tax certificate issued to Bertha Dick and transferred to Solomon Schepper and. Jacob Dick in their firm name of Schepper & Co.
    
      Sheldon B. Mead, for the appellant.
    
      Jay C. Guggenheimer, for the respondent.
   McLaughlin, J.:

On the 30th of April, 1900, a liquor tax certificate was issued to Bertha Dick, which she, on the 29th of August, 1900, with the consent of the Commissioner of Excise, transferred to Solomon Schepper and Jacob Dick, composing the firm of Schepper & Co. Some time thereafter application was made for the cancellation of this certificate upon the grounds, First, that Schepper & Co. had violated clause H of section 31 of the Liquor Tax Law, in that they had kept and maintained, during the hours when the sale of liquors was forbidden, screens, blinds, curtains, etc., over or in front of the windows in the saloon, which prevented any one outside from obtaining a full view thereof; second, that they had violated clause G of the same section, in that they had, on Sunday, the 7th day of October, 1900, opened and unlocked a door and entrance from the street, alley, yard, hallway, room and adjoining premises to the room on said premises where liquors were sold and kept for sale, when it was not necessary for the egress or ingress of the said holder of said liquor tax certificate or members of his family or of his servants for purposes not forbidden by this Act, and the said holder of said liquor tax certificate at said time did admit to said room where liquors were sold and kept for sale, persons other than himself, his family and his servants”; and, third, that they had violated clause A of the same section, in that they had, on Sunday, the 7th day of October, 1900, sold intoxicating liquors to one Pierce and one Nahrwold, and to divers other persons Avhose names are unknown to the petitioner.

Testimony of the respective parties was taken before a referee, Avho reported the same to the court, and the learned justice sitting at Special Term, after a consideration of the same, reached the conclusion that such testimony did not establish the allegations of the petition, and thereupon an order Avas made denying the application, from which the petitioner has appealed.

We are of the opinion that the application should have been granted. It is true that as to the first and third grounds upon Avhich a cancellation was asked the testimony was conflicting and we are not prepared to say that the conclusion reached by the learned justice as to them is not correct, but as to the second ground there is substantially no dispute between any of the witnesses but what the respondent had the doors leading into the saloon open and unlocked and admitted, at a time when the sale of liquors Avas prohibited, persons other than servants or members of his family. For instance, the "petitioner’s witness Nahrwold testified, and his testimony is not disputed, that when he entered the door leading from the street into the hallway and a second door leading from the hallway to the barroom the doors were both standing open. This witness was corroborated by the witness Pierce. The respondent Dick testified that Nahrwold and Pierce entered the saloon and tried to purchase some beer, wliicn he refused to sell. He did not deny that the doors were open as testified to by them; on the contrary, he admitted that he.did not lock the doors Sundays or any other time, and that any one came in there who wanted a meal and that he left the doors unlocked so that they could come in if they wanted to; that he did not keep a hotel, but the barroom and resturant were all one room, and all the witnesses produced by him testified to substantially the same effect.

We have, therefore, the undisputed fact that on Sunday, the 7th day of October, 1900, at a time when the sale of liquors was prohibited by law, the respondent had open and unlocked the door or entrance from the street and hallway to the room in which liquors were sold and kept for sale and that he, at that time, admitted to such room persons not servants in or members of his family. A clear violation of subdivision G of section 31 of the Liquor Tax Law (Laws of 1896, chap. 112, as amended by Laws of 1897, chap. 312), was thereby established, which - provides among other things, that it shall not be lawful to have “open, or unlocked any door or entrance from the street, alley, yard, hallway, room or adjoining premises to the room or rooms where any liquors are sold or kept for sale during the hours when the sale of liquors is forbidden, except when necessary for the egress or-, ingress of the person holding the liquor tax certificate authorizing the traffic in liquors at such place, or members of his family or his servants for purposes not forbidden by this act, or to admit to such room or rooms any other person during hours when the sale of liquors is forbidden,” and the petitioner having established that fact was entitled to an order canceling the tax certificate. (§ 28, subd. 2, as amended by Laws of 1900, chap. 367.)

It is suggested by counsel for the respondent Dick that there could not be a cancellation of the certificate so far as the same related to Schepper, inasmuch as the court never obtained jurisdiction .of him. There is no force in the suggestion. The order, directing Schepper & Dick to show cause why the certificate should not be canceled directed that the service of a copy of the order and the petition and affidavit upon which the same were granted be served personally upon Schepper & Dick, or' “by leaving the same at the place of business designated in said liquor tax certificate with the person in charge of the same.” Service was made in the manner directed by leaving the papers with the person in charge of the saloon at the time the service was made. In response to this service Dick appeared. Schepper did not appear, except for the purpose of objecting to the jurisdiction of the court. The certificate was held by the firm of Schepper & Co. It was their property, and service upon the person in charge of the saloon was sufficient to give the court jurisdiction to cancel against both members of the firm.

The order appealed from, therefore, must be reversed, with ten dollars costs and disbursements, and the motion to cancel granted, with ten dollars costs.

Van Brunt, P. J., Patterson, O’Brien and Laughlin, JJ., concurred.

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