People ex rel. Anderson v. Hoag — 42 N.Y.S. 886

Majority

p. 886

(11 App. Div. 74.)

PEOPLE ex rel. ANDERSON v. HOAG, County Treasurer.

(Supreme Court, Appellate Division, Second Department.

December 30, 1896.)

Headnote

Intoxicating Liquors—Consent of Adjoining Owners.

Under Laws 1896, c. 112, § 17, providing that, on application for a liquor license, the consent of two-thirds of the owners of dwellings situated within 200 feet of the nearest entrance to the premises for which license is desired shall be filed, the facts in reference to the contiguity of such dwellings and the consent of the owners may be determined by the county treasurer, irrespective of the statements of the applicant.

Appeal from special term, Westchester county.

Certiorari by Martin Anderson to review .the action of John Hoag, as county treasurer, in refusing to grant the relator a liquor tax certificate. From an order quashing the writ, and "denying his application for the certificate, relator appeals.

Affirmed.

Argued before BROWN, P. J., and CULLEN, BARTLETT, HATCH, and BRADLEY, JJ.

Frederick W. Sherman, for appellant.

Wilson Brown, Jr., for respondent.

The application of the relator for a liquor tax certificate having been refused by the county treasurer, he applied to a justice of the supreme court for a writ of certiorari to review the action of such officer. The writ was granted, and the county treasurer having made his return thereto, upon the hearing had, the relator’s application for such certificate was denied, and the writ quashed, and from the order entered upon such hearing the relator has appealed to this court.

From the return of the county treasurer it appears that written application for the certificate was made by the relator upon a blank furnished to him by the county treasurer. Upon such blank there were printed questions, numbered, respectively, from 1 to 11, the answers to which were written by the applicant, and this statement was subscribed by the applicant, and sworn to on the 10th day of Sep

p. 887

tember, 1896. It contained all the information which section 17 of the liquor tax law requires that applicants for such certificates shall furnish. Among other matters, it stated that there were three buildings occupied exclusively for dwellings within 200 feet of the nearest entrance to the building where the liquor traffic was to be carried on, each building having a separate owner. There was also filed with the application a consent by Patrick T. Mongan, the owner of the building, to the carrying on of the traffic of liquors therein, and also a consent in writing, signed by Mrs. H. Provoost and Joseph S. Provoost, owners of buildings occupied exclusively as dwellings, within 200 feet of the nearest entrance to the premises described in the statement, consenting that the traffic in liquors should be carried on in such premises. The said county treasurer further returned that, before such application had been received by him, the said Joseph S. Provoost had filed with him a paper withdrawing his consent, and, further, that upon investigation he ascertained that there were five buildings used exclusively as dwellings within the prohibited distance of the building where said traffic was to be carried on, and that the relator was left without the consent of two-thirds of the owners of houses used exclusively as dwellings within 200 feet of said property, and for such reasons he denied said application, and refused to issue the certificate.

We are of the opinion that the order appealed fi;om must be affirmed. Section 19 of the liquor tax law provides that “when the provisions of sections 17 and 18 of this act have been complied with and the application provided for in section seventeen is found to be correct in form and the bond required by section eighteen is found to be correct as to its form and the sureties thereon are approved as sufficient by the county treasurer, * then, upon the payment of the taxes levied,” etc., “the county treasurer of the county, * * * shall at once prepare and issue to the * * * person making such application * * i:" a liquor tax certificate in the form provided for in this act.” Section 17 provides that every person applying for a certificate shall make upon a blank to be furnished by the county treasurer a statement setting forth— First, the name of the applicant; second, the name of every person interested or to become interested in the traffic in liquors; third, the premises where such business is to be carried on; fourth, under which of the first three subdivisions of section 1.1 of the act the traffic is to be carried, on; and, fifth, a statement that the applicant may lawfully carry on such traffic. It further provides, in subdivision 8, that, “when the nearest entrance to the premises described in said statement as those in which traffic in liquor is to be carried on is within two hundred feet of the nearest entrance to a building or buildings occupied exclusively for a dwelling, there shall also be so filed simultaneously with said statement a consent in writing,” executed, at least, by two-thirds of the owners of the buildings, that such traffic in liquors may be carried on in the premises described in the statement.

It is the contention of the appellant that the county treasurer is bound by the statements in reference to the aforesaid facts made

p. 888

by the applicant, and, if such statement is correct in form, the county treasurer has no discretion except to issue the certificate. It will be observed, however, that section 17 does not require that any information in reference to the contiguity of dwellings to the place where the traffic is to be carried on shall be made by the applicant. All that that section provides is that the consent of two-thirds of the owners of dwellings within the prohibited distance shall be filed simultaneously with the statement. So far as it is to be gathered from the statute, the facts in reference to the contiguity of such dwellings is to be ascertained and determined by the county treasurer. He may obtain or require information on this subject from the applicant, and may rely thereon, but. he is not necessarily concluded thereby. In respect to such matters his determination is judicial. He must ascertain and determine the number of dwellings within the prohibited distance, and there must be filed with him the consent of the necessary two-thirds of such number. His determination in that respect is subject to review by a judge of the supreme court upon a writ of certiorari, and is to be affirmed in case the reasons assigned for refusing to grant the certificate are good and valid: It appears in the case before us that the county treasurer refused to grant the certificate to the relator, upon the ground that there were five buildings used, exclusively as dwellings within 200 feet of the nearest entrance to the place where the relator proposed to carry on the traffic in liquors, and that two-thirds of the owners of such buildings had not given their consent to such traffic: Upon this question his return is conclusive.

Upon the facts stated, the application was properly denied by the county treasurer, and the order appealed from must be affirmed, with. $10 costs and disbursements. All concur, except CULLEN, J., who concurs in the result.