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[V 1. 125.

Second Department, April, 1908. day. On Saturday, July first, the relator's petition was presented to the Supreme Court, and a writ of certiorari was allowed and served on the respondent Monday, July third. It is argued by counsel for the respondent that the proceeding was not commenced within the four months limited by the charter. This contention is based upon the fact that the writ was not served until July third, and that until such service was made the proceeding was not commenced. In this contention we think counsel is in error and that the proceeding was "instituted" within the meaning of the statute when the petition was presented to the court July first, without reference to the time of the service of the writ (People ex rel. Taber Prang Art Co. v. Wells, 39 Misc. Rep. 602); but were this not so under the decision of this court in Ryer v. Prudential Ins. Co. (85 App. Div. 7), the respondent's contention is without merit.

It is next urged that the amendment allowed to the petition and writ was without authority and improper, and must be disregarded because allowed two years and three months after the allowance of the original writ, and is, within the decision of People ex rel. Collins v. Ahearn (120 App. Div. 95; 104 N. Y. Supp. 860), equivalent to the commencement of a new proceeding which the four months' limitation had barred.

There are several answers to this contention:

First, in the case cited the original petition did not contain sufficient allegations to warrant the relief demanded, and the effect of the amendment was to first allege the facts upon which the relator relied, when the amendment was allowed. It was the same as an amendment to a complaint designed to change the cause of action, or for the first time to state a cause of action, made after issue joined. No such conditions are presented in the case at bar. The original petition avers, among other things, that the trial was improperly held and that the proceedings were not in accordance with law in such cases made and provided, and that the petitioner was dismissed summarily, arbitrarily, unlawfully and without due process of law. The amendment in no manner changed these averments, but stated in detail one of the particulars upon which they were based, and this before the respondent had filed his return, which brings the case within the principles declared in People ex rel. N. Y. C. & H. R. R. R. Co. v. Feitner (58 App. Div. 343).

App. Div.]

Second Department, April, 1908.

Second, if the amendment was improperly allowed, the proper practice would have been for the respondent to move at Special Term to quash the writ. He cannot raise that issue by an averment in his return. Such matter is no part of a return to a writ of certiorari, and presents an original question to the Appellate Division for determination. We can only hear the merits. All incidental motions must be heard at the Special Term. (People ex rel. McNeary v. MacLean, 64 Hun, 205.) While the hearing was before a deputy commissioner, the power to convict and punish the relator was vested solely in the respondent, his absence or disability not being shown. (People ex rel. Garvey v. Partridge, 180 N. Y. 237.) The proceeding authorized is analogous to the reference of a controverted question of fact arising upon a contested motion in the Supreme Court in which a referee takes and reports the evidence, together with his opinion, and as the court must, notwithstanding such reference, determine and adjudicate the facts from the evidence returned by the referee, so must the police commissioner in a proceeding of this character, determine the facts and convict or acquit the accused upon the evidence taken by the deputy commissioner. (People ex rel. Voss v. Greene, 183 N. Y. 483.) By the return in this proceeding the respondent admits that the testimony taken by the deputy upon the hearing of the charges against the relator had never been written out or transcribed; that he did not have before him any of the written testimony of said trial at the time he dismissed the relator, and that such dismissal was made without any examination of the evidence taken upon the hearing. The only thing connected with said hearing shown to have been before the respondent, or considered by him in determining the guilt of the relator, is the following report of the deputy, made more than two months after the termination of the hearing:

"It appearing from the evidence adduced before me in this case that Henry E. Syperrek was guilty of conduct unbecoming an officer, I find him guilty as charged; and I hereby recommend that he cease to be a member of the Police Department of the City of New York and that he be dismissed therefrom.

"HARRIS LINDSLEY,

"Third Deputy Commissioner."

Second Department, April, 1908.

[Vol. 125.

The two charges returned are for conduct unbecoming an officer in feigning sickness, one on November 22 and the other on November 23, 1904.

The decision of the commissioner was based upon the report of the deputy; he was without authority or power to convict the relator without having the evidence given upon the hearing before him; the conviction was based upon a mere report of the deputy commissioner that he found relator guilty as charged and recommended his dismissal and cannot be upheld.

The writ of certiorari is sustained, the determination of the respondent as police commissioner reversed, the conviction and dismissal of the relator set aside and his reinstatement ordered, with fifty dollars costs and the disbursements of this appeal to the relator.

JENKS, HOOKER, GAYNOR and MILLER, JJ., concurred.

Determination reversed, the dismissal of the relator set aside and his reinstatement ordered, with fifty dollars costs and disbursements of this appeal to the relator.

In the Matter of the Petition of MAYNARD N. CLEMENT, as State Commissioner of Excise, Respondent, for an Order Revoking and Canceling Liquor Tax Certificate No. 24,331, Issued to JENNIE G. CUSICK, Appellant.

Second Department, April 24, 1908.

Intoxicating liquors license

revocation

illegal sale.

One who sells liquor within seventy-five feet of the boundary of State hospital lands violates section 24 of the Liquor Tax Law, and his license is revocable, although the lands are used for agricultural purposes and the hospital buildings are more than one-half mile distant.

APPEAL by Jennie G. Cusick from a judgment of the Supreme Court in favor of the petitioner, entered in the office of the clerk of the county of Suffolk on the 25th day of November, 1907, pursuant to an order made at the Kings County Special Term and entered in said clerk's office on the 14th day of November, 1907, canceling

App. Div]

Second Department, April, 1908.

and revoking a liquor tax certificate issued to the appellant for the excise year ending April 30, 1908, and also from the said order directing the entry of judgment.

Rowland Miles, for the appellant.

Herbert II. Kellogg [Albert O. Briggs with him on the brief], for the respondent.

RICH, J.:

The learned justice before whom the issues in this proceeding were tried has found that the appellant violated the provisions of section 24 of the Liquor Tax Law (Laws of 1896, chap. 112, as amd. by Laws of 1897, chap. 312, and Laws of 1905, chap. 104) in carrying on the traffic in liquor within one-half mile of any building, premises or lands occupied as a State hospital. The statute provides that "Traffic in liquor shall not be permitted: 1. In any building or upon any premises or lands established as a penal insti. tution, protectory, industrial school, asylum, State hospital, State agricultural and industrial school, colony or institution established for the care or treatment of epileptics, or poorhouse, and if such building, premises or lands, other than a county jail or State prison, be situated in a town and outside the limits of an incorporated village or city, not within one-half mile of any building, premises or lands so occupied, provided there be such distance of one-half mile between such building, premises and lands and the nearest boundary line of such village or city." It appears that the Long Island State Hospital is located at Kings Park. The hospital buildings are upon a tract of land containing something over 800 acres, belonging to the hospital and used for its purposes. The buildings are situate more than one-half a mile from the place where appellant conducts her business; but the hospital lands bound her property on three sides and are within seventy-five feet of that place. Section 28, subdivision 2, of the Liquor Tax Law (as amd. by Laws of 1906, chap. 272) provides: "At any time after a liquor tax certificate has been issued,

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said liquor tax certificate may be revoked and canceled if material statements in the application of the holder of such certificate were false, or if the consents required by section seventeen are not properly filed or if the holder of said certificate

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Second Department, April, 1908.

[Vol. 125.

was not for any reason entitled to receive or hold the same, or to traffic in liquors, or if any provision of this act is violated at the place designated in said certificate as the place where such traffic is to be carried on by the holder of said certificate, or by his agent, servant, bartender or any person whomsoever in charge of said premises

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It is conceded that appellant sold liquor at her premises at the time stated in the petition. It is urged, however, that because the lands of the hospital which are within one-half mile of her place where the liquor is sold are used for agricultural purposes, the prohibition does not apply. This would be a strained and unreasonable construction, and one not intended by the Legislature. The language is plain and unmistakable, the true intent and meaning thereof being that the traffic in liquors may not be carried on within one-half mile of any building or lands established as a State hospital. The fields as well as the buildings are used for hospital purposes and the lands of the contiguous tract are as much the lands of the hospital as those lying directly underneath.

It is claimed by the learned counsel for appellant that defendant is estopped because of a former adjudication between these same parties. That was a proceeding instituted by the petitioner here, in which he asked for the cancellation of another certificate upon a different state of facts. It was stipulated in that proceeding that the liquor alleged to have been sold was legally sold, and the order in that proceeding was reversed because it stipulated that the business was lawful. As a matter of fact it now appears it was not lawful and the certificate was illegally obtained, and this is true of the one now before us for consideration, but the learned justice at Special Term has decided to direct the cancellation on the one ground, to wit, that appellant has violated the provision of the Liquor Tax Law. We have concluded to affirm his order on that ground. The order should be affirmed, with ten dollars costs and disbursements.

WOODWARD, HOOKER, GAYNOR and MILLER, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.

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