The People of the State of New York ex rel. Elizabeth Ward, Respondent, v. Daniel J. Hegeman, as County Treasurer of Nassau County, and William W. Farley, as State Commissioner of Excise of the State of New York, Appellants

The People of the State of New York ex rel. Elizabeth Ward, Respondent, v. Daniel J. Hegeman, as County Treasurer of Nassau County, and William W. Farley, as State Commissioner of Excise of the State of New York, Appellants. Second Bepartment, May 7, 1915. Intoxicating liquors —jurisdiction of County Court to issue writ of certiorari under Liquor Tax Law, section 37 — distinction between powers vested in court and judge. Under subdivision 1 of section 37 of the Liquor Tax Law, providing that a writ of certiorari to review the action of a county treasurer in refusing to issue a liquor tax certificate may be issued by a county judge or a justice of the Supreme Court, the County Court, as such, has no jurisdiction to issue the writ, and where it appears that the petition was addressed to the County Court and the order for the writ was entitled at a Special Term of the County Court with the statement that the county judge of the county was “ present ” and contained the provision that the court dispensed with notice of application, and the writ required return to the County Court at a Special Term, and the order recited the action of “the Court,” it should be reversed. The distinction between the statutory powers vested in a court and conferred upon a judge must be regarded as substantial. Appeal by the defendants, Daniel J. Hegeman, as county treasurer, and another, from an order of the County Court of Nassau county, entered in the office of the clerk of said county on the 31st day of December,' 1914. The proceeding was commenced under subdivision 1 of section 27 of the Liquor Tax Law (Consol. Laws, chap. 34; Laws of 1909, chap. 39). Charles R. O’Connor [Louis M. King and A. M. Sperry with him on the brief], for the appellants. George B. Stoddart, for the respondent. [MAJORITY — Jenks, P. J.:] Jenks, P. J.: This is an appeal from order that reverses the ruling and decision of the county treasurer of Nassau county, grants the application of the relator for the issuance of a liquor tax certificate and requires the county treasurer, acting as deputy excise commissioner of the State, to issue such certificate. The proceeding was begun by petition for a writ of certiorari. It was addressed to the honorable County Court of Nassau county. The order for the writ is entitled at a Special Term of the County Court held in and for the county of Nassau, with the statement that the county judge of that county was “ present,” and contains the provision that “the court hereby in its discretion dispenses with the notice of application for the writ. ” The writ requires return to the County Court of the county of Nassau at a Special Term, that the action of the county treasurer may be reviewed, and that “this Court” (i. e., the County Court) may act thereon. The order appealed from is made at a Special Term of the County Court, held in and for the county of Nassau at the county court house, whereat the county judge was “present,” recites the action of “ the Court” in the matter, was marked “ Enter ” by the county judge, and the clerk thereupon certifies that it was “granted.” I think that this order must be regarded as one granted by the County Court and not made by the county judge (People ex rel. Cecere v. Slocum, 161 App. Div. 733), and that, therefore, upon the authority of that case, it must be reversed. There is a distinction that must be regarded as substantial between the statutory powers vested in a court and conferred upon a judge. The order of the County Court of Nassau county is reversed, with ten dollars costs and disbursements, and the writ of certiorari is dismissed. Thomas, Stapleton and Rich, JJ., concurred. The parties hereto having stipulated in open court that this case may be disposed of by a court of four, the decision is as follows: Order of the County Court of Nassau county reversed, with ten dollars costs and disbursements, and writ of certiorari dismissed.