Citation Numbers: 33 Misc. 409, 2 Liquor Tax Rep. 422, 68 N.Y.S. 450
Judges: Blanchard
Filed Date: 12/15/1900
Status: Precedential
Modified Date: 1/13/2023
This is a motion for a new trial on the minutes. The action was brought by Henry H. Lyman, as State Commissioner of Excise of the State of New York, against Margaret A. Oussani and The Fidelity & Casualty Company of New York, to recover a penalty of a bond given in pursuance of the Liquor Tax Law. It appears that, on or about the 10th day of April, 1899, the defendant Oussani applied to the deputy commissioner of excise for the boroughs of Manhattan and The Bronx for a liquor tax certificate to traffic in liquor at Nos. 32 and 34 West Twenty-ninth street, in Manhattan borough, New York city. Before granting the certificate, the deputy commissioner exacted the bond required by law. Thereupon these defendants, the said Oussani, as princi
- At the close of the plaintiff’s case, the learned counsel for the defendants moved the dismissal of the complaint on three grounds, two of which were finally resolved in favor of the defendíante, and
On the other hand, in the case of Mayor v. Dickerson, 45 N. J. Law, 38, the action was on the city treasurer’s bond. The plea of the sureties was that the plaintiff “ permitted, encouraged, induced, and was privy to the alleged breach.” The city demurred to the pleadings, and it was held that the plea was good, as “ It alleges in substance that the obligees in the bond intentionally brought about the breach now complained of. They must therefore be estopped from complaint.”
These decisions are not authoritative, one way or the other, and we must look to the law itself and construe its provisions. By virtue of the provisions of section 10, the special agents of the plaintiff A\rere authorized to investigate all matters in relation to the compliance Avith law by persons engaged in the traffic in liquor, and to investigate any other matter in connection with the sale of liquor, and section 38 of the act provides that any officer who shall neglect or refuse to- perform his duty under the provisions of the act shall be liable to a penalty of $500 for each and every offense. The methods to be adopted in the course of such investigation are not specially defined or limited by the statute, and it Avas doubtless the intention of the legislature to leave to the State officials making such investigations the largest discre
It, therefore, seems clear that, in the course of their investigation of the conduct of the defendant Oussani in her business of selling liquor, it was necessary and proper for the special agents of the plaintiff to ascertain what was the particular kind of liquor which she was selling during the prohibited hours, and for that purpose to seek to be served with the liquor which she was offering for sale.
The evidence does not show that those agents offered any special invitation or inducement to the defendant to serve such liquor to them. The transaction was the ordinary one of ordering specified liquors in á liquor saloon, and paying the usual prices for them. There is no evidence that the plaintiff gave any particular instructions or directions to the special agents as to how they should proceed in this particular investigation, or that they were particularly directed by the plaintiff to do anything to induce this defendant to sell liquor to them during the prohibited hours. And even if the plaintiff had given such particular instructions to the special agents, I should not hold that such directions were improper, nor that the carrying out of such directions made the plaintiff or his special agents participants in the defendant’s wrongdoing. The act does not make the purchase of liquor during the prohibited hours an offense, and while it might be a question of good morals whether one should purchase liquor from one prohibited by the statute from selling the same, that question is not before the court for decision here.
The act, section 31, makes unlawful what otherwise would be lawful, namely, the selling of liquor during a certain interim. As the act does not prohibit the purchase of liquor during that interim, and has not actually limited and abridged the ordinary rights of citizens to traffic freely, and is highly penal in its nature, the court should not presume that it creates any offense not specifically defined in the statute itself.
Nor does it appear that, in purchasing said liquor from the defendant Oussani, the special agents practiced towards her any coercion, misrepresentation, fraud or deceit. She had the option to refuse to sell the liquor. The special agents were, so far as she
But, even if it should he conceded that the special agents committed a wrong to the defendant in purchasing liquor from her, the legal principle involved in the maxim would still have no application in this case.
The duties of the special deputies or agents are defined by section 10 of the statute. If the buying of liquor from the defendant, as they did, was not legitimately included in their acts of investigation of the sale of liquor by the defendant, or in relation to the compliance with law by her in her business of traffic in liquor, then they were acting without the scope of their authority in so buying, and the State of New York, which is the real plaintiff and party interested in this action, would not be hound by their wrongful act in the absence of proof that they were specially instructed and directed by their superior, the State Commissioner of Excise, to buy the liquor from the defendant at the time and in the manner disclosed by the evidence. No such proof exists in this case. In this view of the case, the acts of the special agents in so buying from the defendant were not their acts as special agents of the State, hut acts done on their own responsibility as private citizens, and the State had the undoubted right to make use of their testimony as to the sale of the liquor to them by the defendant during the prohibited hours in the same manner subject to the established rule of evidence as though the said special agents were not in the employ of the State.
The motion for a new trial is, therefore, denied.
Motion denied.