Citation Numbers: 95 A.D. 598, 3 Liquor Tax Rep. 377, 88 N.Y.S. 1022
Judges: Hatch
Filed Date: 7/1/1904
Status: Precedential
Modified Date: 1/13/2023
It appeared by the petition presented to the Special Deputy Commissioner of Excise by the respondent- that a liquor tax certificate was issued in April, 1903, to Mary Stark; that the same was thereafter duly assigned to the relator, which assignment contained a provision authorizing the relator to make a surrender of the certificate and collect any rebates due thereon. It was further averred that prior to Fovember 1,. 1903, Mary Stark ceased to traffic in liquor and thereupon delivered the certificate to the relator, who, on Fovember 2, 1903, surrendered such certificate to the Special Deputy Commissioner of Excise who issued the same, and demanded the issuance of. a receipt for. the payment of the rebate for the unexpired term of the certificate pursuant to the provisions of section 25 of the Liquor Tax Law (Laws of 1896, chap. 112, as amd. by Laws of 1903, chap. 486). The Special Deputy Commissioner of Excise thereupon issued the duplicate receipts provided for in said section,
The return to the petition upon which the writ was granted put in issue the averment of the relator that Mary Stark and all persons under her voluntarily ceased to traffic in liquor for the term for which the tax was paid under the certificate. It also put in issue the averment of the petition that at the time the certificate was delivered to the Special Deputy Commissioner of Excise, no complaint, prosecution or action was pending on account of any violation of the Liquor Tax' Law by Mary Stark, and also the averment that the said Mary Stark had not up to the time of the surrender of the certificate violated any of the provisions of the Liquor Tax Law for the excise year for which such certificate was issued.
The learned court at Special Term held that it was the intention of the Legislature to give to the holder of a liquor tax certificate the “ absolute right to apply for a rebate unless there was at the time of the surrender of the license some indictment, complaint, prosecution, action or other proceeding against the holder for a violation of the License Law, and that the rebate was to be paid in every, case unless the same was forfeited by proceedings under the provisions of section 25 of the act.” This holding cannot be sustained. The right to the rebate is not dependent upon the non-existence of an indictment, complaint, prosecution, action or other proceeding for a violation of the Liquor Tax Law at the time that the surrender is made. On the contrary, by the express provisions of the statute, such condition must not only exist at the time of the surrender, but it is also required that the holder “ shall not have violated any provision of the Liquor Tax Law during the excise year for which such certificate was issued.” By the terms of the statute, therefore, it is made a condition precedent that there shall have been no violation of the Liquoi; Tax Law during the excise year for which the certificate was issued, and that there have been no violations prior to the time when the holder ceases to traffic in liquor. If the construction suggested by the learned court below obtain, it would necessarily follow that the holder of a certificate might violate every provision of the Liquor Tax Law and still obtain a rebate at "the time of the surrender, based upon the condition that, up to that time,
The order granting the peremptory writ should, therefore, be reversed. As, however, the relator is entitled to an opportunity to establish a case entitling Mm to the rebate, it is proper that an alternative writ should be granted, as thereunder the questions put in issue by the petition and the return may be litigated. The order should, therefore, be reversed, with costs and disbursements, with leave to apply at Special Term for the issuance of an alternative writ.
Van Brunt, P. J., O’Brien, McLaughlin and Laughlin, JJ.
Order reversed, with costs and disbursements, with leave to apply at Special Term for alternative writ.