Lyman v. Malcom Brewing Co.

• Decision Date: 03 October 1899
• Citation: 54 N.E. 577,160 N.Y. 96
• Parties: LYMAN, State Com'r, v. MALCOM BREWING CO.
• Court: New York Court of Appeals Court of Appeals

160 N.Y. 96

54 N.E. 577

LYMAN, State Com'r,

v.MALCOM BREWING CO.

Court of Appeals of New York.

Oct. 3, 1899.

Appeal from supreme court, appellate division, Second department.

Petition by Henry H. Lyman, state commissioner of excise, against the Malcom Brewing Company, to revoke a liquor-tax certificate. An order denying the application having been affirmed by the appellate division (57 N. Y. Supp. 634), the petitioner appeals. Affirmed.

S. B. Mead, for appellant.

J. F. Bullwinkel, for respondent.

O'BRIEN, J.

The commissioner of excise filed a petition with the court, praying that the liquor-tax certificate issued by him under the statute to the Malcom Brewing Company, a corporation, be revoked and canceled on the ground that it had been forfeited by the acts of the company which were alleged in the petition. The court at special term denied the application, and the appellate division has affirmed the order.

The application to revoke the license was based upon an allegation that the person holding it sold liquor at more than one place on the premises described in the certificate, in violation of the statute. The company was authorized by the certificate to traffic in liquors at a place therein described in these words: ‘Inside Washington Park Baseball Grounds, north side of Third street, three hundred and fifty feet east of Third avenue, Brooklyn.’ The misconduct alleged on the part of the company as the ground for revoking the certificate is that, on a day named, it sold two glasses of lager beer, to a person named, on another part of the grounds or park, and, as claimed, at another place, without having paid the tax for the permission to sell at that particular place. The application seems to be founded upon the theory that the delivery of any liquors by the company to visitors upon the grounds, except at the precise place designated in the certificate, was a violation of the penal provisions of the statute, and a legal cause for the revocation of the certificate. The company paid the tax on procuring the certificate, but the commissioner claims that this certificate thus procured has been forfeited because sales of beer were made upon the grounds by the holder at another place than that described therein. The sale of the lager beer at the other place, for which a forfeiture of the license is claimed, appears to have been made to a special agent of the commissioner. The testimony upon which the court dismissed the proceedings disclosed substantially the following facts: The business of selling the beer on the grounds was carried on by one Stevens, to whom the company sold beer, and gave the use of the certificate. He owned the liquor, and had the profits of the business. Liquor-tax certificates, or the right to engage in the sale of liquors, constitute, under the present law, a species of property, transferable by the party procuring the same. Laws 1897, c. 312, § 27. The privilege or right which it confers upon the holder cannot be revoked, except in the manner and for the causes prescribed in the statute. The holder may invoke the general rules of law for the protection of property in any proceeding having for its object the forfeiture or destruction of the right which the certificate confers.

This suggests the inquiry as to how far the brewing company or its property is liable for the acts of Stevens. It does not appear that the relation of principal and agent existed between them. The company permitted him to use the certificate to do business at a designated place, and in compliance with it. There is nothing in the record to show that it intended or authorized its use in any other than a lawful way. It may be that, for any violation of law committed by him at the place designated, the company or its property might be responsible. But if he started the liquor business at some other place, or at several other places, he would then be engaged in something wholly disconnected from the business which the certificate authorized. As to the business so disconnected, he was simply acting without license, and he alone, and not the company, is responsible for the consequences. On the other hand, if the delivery of the beer to the public on the ground where games of ball were being played, at places other...