In the Matter of the Petition of William W. Farley, as State Commissioner of Excise, for an Order Revoking and Canceling Liquor Tax Certificate No. 19,442, Issued to Daniel S. Gardner. William W. Farley, Appellant; Daniel S. Gardner, Respondent

In the Matter of the Petition of William W. Farley, as State Commissioner of Excise, for an Order Revoking and Canceling Liquor Tax Certificate No. 19,442, Issued to Daniel S. Gardner. William W. Farley, Appellant; Daniel S. Gardner, Respondent. Third Department, November 12, 1913. Intoxicating liquors —unlawful sale on Sunday —revocation of liquor tax certificate. Where it appears that special agents from the State Department of Excise went to a hotel on Sunday for the purpose of getting a drink of whisky, and as a condition of getting it were required to sign the register and permit sandwiches to be brought, although they did not want them, the bringing of the sandwiches and the signing of the register were mere devices to evade the law, and a final order establishing that the agents were guests of the hotel and that the liquor was served as part of a luncheon is not justified and should be reversed and the liquor tax certificate revoked and canceled. Appeal by William W. Farley, as State Commissioner of Excise, from an order of the county judge of Broome county, entered in the office of the clerk of said county on the 28th day of October, 1912, denying an application to cancel liquor tax certificate No. 19,442, issued to Daniel S. Gardner. A. M. Sperry [Louis M. King of counsel], for the appellant. Mangan & Mangan, for the respondent. [MAJORITY — Kellogg, J.:] Kellogg, J.: A careful consideration of the evidence indicates clearly that the special agents went to the hotel for the purpose of getting a drink of whisky, and as a condition of getting it were required to sign the register and go into a room upstairs and permit sandwiches to be brought to them with the whisky. They had previously given notice that they wanted nothing to eat, only wanted whisky. When the waiter said they must take something to eat they told him he might bring in anything which was necessary to get the whisky. They did not eat the sandwiches, were not guests of the hotel and did not intend to be. The sandwiches and the register were mere devices by which it was sought to evade the law. The finding, therefore, that they were guests of the hotel, and that the liquor was served as a part of the luncheon, is not justified by the evidence. The final order is, therefore, reversed, and an order granted finding that the defendant did unlawfully sell liquor as alleged in the petition on Sunday, May 19 and 26, 1912; that such acts were in violation of his liquor tax certificate No. 19,442 and the law under which the same was issued, and that such liquor tax certificate is revoked and canceled, with costs. All concurred. Final order reversed on law and facts, with costs, and an order granted finding that the defendant did unlawfully sell liquor as alleged in the petition on Sunday, May 19 and 26, 1912; that such acts were a violation of his liquor tax certificate No. 19,442 and the law under which the same was issued, and that such liquor tax certificate is revoked and canceled. The finding of fact disapproved of is that the defendant did not unlawfully sell liquor at the times stated.