In the Matter of the Petition of Emory Merrihew, Respondent, for an Order Enjoining Joseph J. Cuneo, Appellant, and Agents from Trafficking in Liquor Contrary to the Provisions of the Liquor Tax Law

In the Matter of the Petition of Emory Merrihew, Respondent, for an Order Enjoining Joseph J. Cuneo, Appellant, and Agents from Trafficking in Liquor Contrary to the Provisions of the Liquor Tax Law. Third Department, March 8, 1911. Intoxicating liquors — local option— injunction — statute construed. Subdivision k of section 30 of the Liquor Tax Law, which prohibits the soliciting, accepting or procuring, in a town in which the sale of liquor is prohibited, an order to deliver intoxicating liquors, does not prohibit the sale of liquor to a person residing in such town if the transaction takes place outside the town. Hence, an injunction prohibiting the soliciting, procuring and accepting orders for liquors should in express terms prohibit such acts only in the town which has voted against the sale of liquor. Appeal by Joseph J. Cuneo from an order of the County Court of Ulster county, entered in the office of the clerk of said county on the 21st day of September, 1910, overruling special objections and also from an order of said court, entered in said clerk’s office on the 1st day of September, 1910, enjoining the appellant from, trafficking in liquors in the town of Olive, Ulster county, N. Y. Jenkins & Shufeldt, for the appellant. Floyd W. Powell, for the respondent. [MAJORITY — Per Curiam:] Per Curiam: We think the county judge obtained jurisdiction to make the order, and that he properly overruled the appellant’s preliminary objections. We are also of opinion that the affidavits show that the appellant was in effect peddling lager beer and whisky in the town of Olive,. which had voted no license, and that upon the merits the order should be sustained. The in junction order is too broad, however, and might be construed to prohibit the appellant from selling to any person who resided in the town of Olive any intoxicating liquors at his place of business in the city of Kingston and delivering the same to such person. What subdivision K of section 30 of the Liquor Tax Law (Consol. Laws, chap. 34 [Laws of 1909, chap. 39], as amd. by Laws of 1910, chap. 494) prohibits is the soliciting, accepting or procuring in a town in which a liquor tax certificate is prohibited an order to deliver intoxicating liquors. It does not prohibit the selling of liquor to a person who chances to reside in such a town if the transaction is had outside the town. The injunction order should be modified by inserting after the words “soliciting, procuring or accepting,” the words “in the town of Olive, Ulster county, E. Y.,” and as so modified affirmed, without costs. All concurred. Order modified by inserting after the words “ soliciting, procuring or accepting,” the words “ in the town of Olive, Ulster county, E. Y.,” and as so modified affirmed, without costs.