In the Matter of the Petition of William W. Farley, as State Commissioner of Excise of the State of New York, Appellant, for an Order Enjoining John Whalen, Respondent, from Trafficking in Liquors Contrary to the Provisions of the Liquor Tax Law

In the Matter of the Petition of William W. Farley, as State Commissioner of Excise of the State of New York, Appellant, for an Order Enjoining John Whalen, Respondent, from Trafficking in Liquors Contrary to the Provisions of the Liquor Tax Law. First Department, March 22, 1912. Intoxicating liquors — injunction to restrain traffic in liquors on premises within one year after revocation of certificate—violation of subdivision 8 of section 15 of the Liquor Tax Law. Where, pending proceedings which resulted in the revocation of a liquor tax certificate on the ground that the premises had been allowed to become disorderly, a liquor tax certificate was issued to another party for the same premises, who designated the place in his application as at another street and number, an injunction under section 28 of the Liquor Tax Law, restraining the holder of the latter certificate from trafficking in liquors, may be granted on the application of the State Commissioner of Excise. The holder of the latter certificate violated subdivision 8 of section 15 of the Liquor Tax Law, which, as amended by Laws of 1910, chapters 485 and 503, and by Laws of 1911, chapter 643, provides'that “no person shall traffic in liquors at said premises for the period of one year from the date of the entry of a final order canceling such certificate.” It is unlawful to traffic in liquors, with or without a certificate, for the period of one year from the date when a certificate for such premises has been revoked. Appeal by the petitioner, William W. Farley, as State Commissioner of Excise, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of January, 1912, denying the petitioner’s motion for an injunction, and also from an order entered in said clerk’s office on the 9th day of February, 1912, denying said motion after a reargument. Charles Firestone, for the appellant. Edward Weiss, for the respondent. [MAJORITY — Miller, J.:] Miller, J.: The State Excise Commissioner applied under section 28 of the Liquor Tax Law (Consol. Laws, chap. 34 [Laws of 1909, chap. 39], as amd. by Laws of 1909, chap. 281) for an injunction restraining the respondent from trafficking in liquors contrary to the provisions of said statute at No. 120 West Thirty-eighth street, in the borough of Manhattan. A liquor tax certificate issued to one Elise Ruehl for premises Nos. 1384 and 1386 Broadway was revoked by an order of this court on April 1, 1911, on the sole ground that the premises had been suffered to become disorderly. Pending the proceedings for revocation a liquor tax certificate was issued to respondent for said premises No. 120 West Thirty-eighth street. The petitioner stated on information and belief that the premises described in the applications for both of said certificates and where the traffic was actually carried on, both by said Ruehl and by the respondent, were one and the same. That statement was supported by affidavits made on knowledge and was not denied. The sole question involved on this appeal is whether the proceeding was authorized by said section 28 which, in so far as material, provides: “If any person shall unlawfully traffic in liquor without obtaining a liquor tax certificate, as provided by this chapter, or shall traffic in liquors contrary to any provision of this chapter, the State Commissioner of Excise, the deputy commissioner, or any taxpayer residing in the city, borough, village or town, may present a verified petition to a justice of the Supreme Court or a Special Term of the Supreme Court of the judicial district in which such county is situated, or the County Court or judge of the county in which such traffic in liquors is carried on, for an order enjoining such person from trafficking in liquor thereafter.” It might seem at first glance that that section was intended to apply to the case of a traffic without a certificate or contrary to the authorization of the particular certificate issued, especially in view of the fact that an injunction may be obtained in and pending a proceeding for revocation pursuant to section 27 (as amd. by Laws of 1909, chap. 281, and Laws of 1910, chap. 503). The question, of course, is whether the respondent is trafficking in liquors “contrary to any provision” of the Liquor Tax Law. That question is answered by subdivision 8 of section 15 as amended by chapters 485 and 503 of the Laws of 1910 and chapter 643 of the Laws of 1911. As thus amended the material part provides as follows: “* * * and if the violation of law for which the cancellation or forfeiture of said certificate was had was that the holder thereof, or his agent, had suffered or permitted said certificated premises, or any yard, booth, garden or any other place appertaining thereto or connected therewith, to become disorderly, or had suffered or permitted any gambling in the place designated by the liquor tax certificate as that in which the traffic in liquors was to be carried on, or in any yard,-booth, garden or any other place appertaining thereto or connected therewith, no new certificate shall be issued for said premises to any person and no person shall traffic in liquors at said premises for the period of one year from the date of the entry of a final order canceling such certificate, or from the date of the conviction of the certificate holder or his agent for such crime committed on said premises * * *.” (Italics are mine.) The words in italics were,added by said amendments of 1910 and were re-enacted by the amendment of 1911 and were evidently intended for just such a case as this. It was, therefore, unlawful to traffic in liquors at said premises with or without a certificate for the period of one year from April 7, 1911, and the case is plainly within said section 28. As there is no denial of the material facts alleged in the petition the order should be reversed, with ten dollars costs and disbursements, and the prayer of the petition granted, with costs. Ingraham, P. J., Laughlin, Clarke and Scott, JJ., concurred. Orders reversed, with ten dollars costs and disbursements, and prayer of petition granted, with ten dollars costs.