Hyman Suss, Respondent, v. William W. Farley, as State Commissioner of Excise of the State of New York, Appellant

Hyman Suss, Respondent, v. William W. Farley, as State Commissioner of Excise of the State of New York, Appellant. Second Department, November 6, 1914. Intoxicating liquors — forfeiture of certificate by reason of illegal sales by employee. In order that a liquor tax certificate may be forfeited by reason of two convictions of employees of the holder for violating the law, as provided in subdivision 3 of section 36 of the statute, as amended, it is not necessary that the second offense of the employee take place after the first conviction. The certificate is forfeited if there are two offenses by a servant and he is subsequently convicted on the same day after a separate trial for each offense. Appeal by the defendant, William W. Farley, as State Commissioner of Excise, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 7th day of May, 1914, upon the decision of the court after a trial at the Kings County Special Term. The judgment permanently enjoined the defendant from removing a liquor tax certificate issued to the plaintiff. Charles R. O’Connor [Louis M. King and A. M. Sperry with him on the brief], for the appellant. Ralph K. Jacobs, for the respondent. [MAJORITY — Thomas, J.:] Thomas, J.: The plaintiff’s servant was convicted of selling his master’s liquor on Sunday, and before he was arraigned therefor in the Magistrate’s Court he repeated the offense, and such proceedings were had that on March twenty-seventh thereafter he was separately tried for each offense and convicted thereof in the Court of Special Sessions. The plaintiff asserts that the two convictions on the same day do not operate to forfeit the liquor tax certificate pursuant to the Liquor Tax Law (Consol. Laws, chap. 34 [Laws of 1909, chap. '39], § 36, subd. 3, as amd. by Laws of 1910, chap. 485). Moreover, his contention is that the second conviction, to be operative upon the certificate, must be for an offense committed subsequent to the first conviction. It is urged that the purpose of the statute is to give the master warning that his servant has disobeyed the law and thereby put upon him the risk of his retention. It would be immaterial for such purpose whether the convictions were had on the same day or on different days, provided the offenses were committed before the first conviction. But it cannot be that the State intended that the owner could, without hazard to his certificate, sell through his agents, perchance continuously, on Sundays, until one conviction should be had, and that a second conviction that should disable him from doing business must be for an offense committed subsequent to the first conviction. That would be adding words and thoughts to the statute that are not to be found within its letter and spirit. Servants act for the master’s gain, and presumptively with his sanction, when they disobey a statute that may entail punishment by fine or imprisonment or both. But, in view of possible cases of a servant inviting punishment by selling contrary to law and his master’s command, it is provided that the offenses must be shown by two convictions. The offenses before the first conviction are not aggregated and embodied in it, but each offense earns conviction and punishment. That is quite unlike actions for penalties where for more than one offense there is but one penalty recoverable. The construction sought by plaintiff would give wide immunity to the owner of a certificate, inasmuch as all convictions of servants for offenses prior to the first conviction would be inefficient against the master, however many convictions might be had thereon. The judgment should be reversed, with costs of the appeal, and the complaint dismissed, with costs. Jenks, P. J., Burr, Carr and Stapleton, JJ., concurred. Judgment reversed, with costs of the appeal, and complaint dismissed, with costs.