Nieland v. McGrath , 2 Liquor Tax Rep. 201 ( 1899 )

Gabbetsoh, J.

The proceeding may be brought against the holder of the certificate. Liquor Tax Law, § 28, subd. 2. At the time this proceeding was instituted Elizabeth McGrath was the holder of the certificate by assignment from Michael, consent thereunto having been given by the deputy excise commissioner, upon alleged compliance with the provisions of sectiqn 27, id. The right of Elizabeth to hold the certificate and the liability, if any, for a revocation and cancellation thereof, is dependent upon compliance by her with the requirements for the making and filing of a new application and bond as upon an original application. ■ Id., § 27. The statements made by Michael in his application would seem to be immaterial. He is no longer a party in interest, and is estopped by the assignment made by him from claiming any right to the certificate. There is no authority for bringing in Elizabeth as a party to this proceeding. The court may not do this under any of its general or equitable powers or by analogy to the procedure in an action. The proceeding is penal in its nature and the provisions of the statutes in respect thereto must be at least substantially followed, if not strictly complied with.

The motion to dismiss the proceeding must be granted because not brought against the holder of the certificate.

Motion granted, with ten dollars costs.