In re Clement

Marcus, J.

This is a proceeding' brought by Maynard 1ST. Clement, as State Commissioner of Excise, to revoke the liquor tax license issued to Barbara Haas, for premises on the west side of Wagner street, about 125 feet south of William street, Doyle, Cheektowaga, Erie county, N. Y.

It is claimed by the Commissioner that Barbara Haas, the respondent and applicant for the certificate in question, made a false statement to obtain the certificate by stating that the required number of consents in writing that such traffic in liquors be so carried on in said premises during the term therein stated, executed by the owner or owners, or by the duly authorized agent or agents of such owner or owners, of at least two-thirds of the total number of buildings occupied exclusively as dwellings, the nearest entrance to which is within 200 feet, measured in a straight line to the nearest entrance of the premises on which traffic in liquors was to be carried on, were attached to said application statement.

This statement was and is a material statement, and it is claimed that such statement was and is false.

It appears from the evidence that, previous to the application for a license by Barbara Haas, one Anthony Miller, her stepfather, was convicted of running a disorderly house, and that, in consequence, his license was revoked; that, thereafter, a rough board .shack was erected eight feet in the rear of the premises, where Barbara Haas is now conducting the liquor traffic. It further appears that said Anthony Miller is now with Barbara Haas. The shack referred to is upon the same premises where the disorderly acts took place for which Anthony Miller was convicted. A conviction for disorderly conduct bars traffic for one year.

After careful consideration, I conclude that the respondent herein did not obtain and file with said application state-meat the consents in 'writing of the owners of at least two-thirds of the total number of buildings occupied exclusively as dwellings, the nearest entrance of which is within 200 feet, measured in a .straight line to the nearest entrance of the premises on which the traffic in liquors was to be carried on, to the nearest entrance to said buildings occupied exclusively as dwellings. There are eleven buildings within the distance of said 200 feet from the nearest entrance of the respondent’s place of business. One of these buildings, owned by one Mahle, lacks two and two-fifths inches of being 200 feet away from said entrance.

In reaching this conclusion, I am not unmindful of the maxim: “ The law cares not for small thingshut a failure on the part of the court to grant this .petition and' revoke the license would make the administration of the Excise Law ridiculous, as well as the violation of the same easy and safe. It would encourage a still greater disrespect for the Excise Law, if that is possible, and such disrespect would he aided and sanctioned hy the court.

The effort on the part of the Commissioner of Excise to procure the revocation of this license undoubtedly grows from the fact that the taking out of the license by the respondent was a mere subterfuge for the transaction of the same business hy Anthony Miller who, as above mentioned, was convicted of 'running, a disorderly house, and in consequence thereof lost his license.

In order to procure this revocation it must be done upon legal grounds, and apparently none seemed open to the Commissioner other than the question of distance. While, on its face, this application, by reason of the fact that hut two and two-fifths inches is the foundation upon which this proceeding is presented to the court, might he deemed frivolous and officious, under all the facts and circumstances as disclosed by the evidence, there seems to he no reason why the court should strain after sustaining -this license, but every reason appears why the same should be revoked.

An order to that effect may be entered.

Ordered .accordingly.