It does not seem that there was necessarily any question involved upon the trial of the issues raised by the alternative writ and the return as to upon whom the burden of proof rested as to events occurring after the surrender of the certificate. The right of the relator to the rebate having been denied by the return it was bound to show by proof or admissions upon the record that the holder of the liquor license and his attorney had done all that the law required as conditions precedent to the right to claim such rebate.
It was admitted upon the record that the license had been surrendered and the proper petition filed with the Deputy Commissioner of Excise, and that such Deputy Commissioner had issued the receipt required by law, but the return denied, as it was alleged in the alternative writ, that the holder of the license had voluntarily ceased to traffic in liquors before the surrender of the certificate, and, therefore, claimed that the relator was not entitled to recover the rebate.
It is to be observed that to entitle the holder of a liquor license to surrender the same he must, prior to such tender of surrender, voluntarily have ceased to traffic in liquors.
The existence of this fact is a condition precedent to the right to a rebate, and we cannot find any provision of the statute which makes any action upon the part of the Deputy Commissioner an adjudication upon that subject. According to the statute when a petition is presented to the Deputy Commissioner showing all the facts required to be shown upon such application, he is directed by the statute to issue the receipts required by law. He is not given any power to pass upon the question of the truth of the facts set forth in the petition, and his action in issuing the receipt cannot have that effect. This would seem to be apparent from a reading of the statute. Leaving out those provisions that have no relevancy to the present case, it reads as follows:
“ § 25. If a * * * person holding a liquor tax certificate and authorized to sell liquors under the provisions of this act, * * * *450shall voluntarily. * * * cease to traffic in liquors during the term for which the tax is paid under such certificate, such * * * person or their * duly authorized attorney may surrender such tax certificate to the officer who issued the same * * *, and at the-same time shall present to such officer a verified petition setting forth all facts required to be shown upon such application. Said officer shall thereupon compute the amount of pro rata rebate-then due on said certificate for the unexpired term thereof, and shall execute duplicate receipts therefor. * * * One of such receipts said officer shall deliver to the person entitled thereto, and -the other of such receipts he shall immediately transmit, with the surrendered certificate and the petition for the cancellation thereof,, to the state commissioner of excise.”
There is evidently no judicial duty imposed by the foregoing provision of the law upon the Deputy Commissioner. When the-certificate is presented to him with a petition setting forth all the required facts he must issue his receipts.. There is no power given, to him to pass upon the truth of the allegations in the petition, and although undoubtedly if he refused to issue a receipt, he could not be compelled to do so unless the applicant showed that the conditions precedent to the issuance of a receipt had been fulfilled, yet we, cannot find anywhere in the statute any authority upon his part to pass upon that question, or to make any admissions relating-thereto which will be binding upon the State Commissioner. The State Commissioner is the only one who is empowered to act, fin ally in the matter. When the claimant of a rebate comes to him and demands his rebate, he certainly has the right to demand proof. of the fact that the requirements of the law have been complied with.. Until they are shown to have existed, no right to a rebate is, given, by the statute.
The whole foundation of the claimant’s demand is based upon the-fact that he has, prior to the tender for surrender of .his license, voluntarily ceased to traffic in liquors. If he has not, then he has no claim. The statute giving the Deputy Commissioner no power to pass upon this question or even to demand proof upon the subject, it certainly must have been intended that, the officer who is to pay the rebate claimed should have the power to demand proof ■ of. *451the right to such rebate. It seems to me that the right to the rebate is to be construed as resting upon a contract between the licensee and the State. If such is the case, clearly the party claiming must show compliance with all conditions precedent.
There is no question of imputing to a man a crime in requiring: him to show compliance with the conditions precedent found in a. statute any more than there "would be in requiring a man to prove: the execution of a contract which has been denied in an answer to a. sworn complaint. The claimant comes into court and demands his. rebate, alleging that he has done everything to entitle him to such rebate. The State Commissioner says : “You are not entitled to it. because you did not cease to traffic in liquors before you presented your certificate for surrender, which is one of the conditions precedent to your being allowed any rebate.” Upon whom does the burden of.proof lie ? Clearly the claimant must prove his case, as in the case of any other contract.
The case of People ex rel. Brewing Co. v. Lymam, (53 App. Div. 470) may seem upon a cursory examination to be contrary to our view, but no such question was raised in that case, and the remark of the learned justice who wrote the opinion in that case was clearly not considered material.
The order should be affirmed, with costs.
Patterson, O’Brien and McLaughlin, JJ., concurred; Laughlin, J., dissented.
Sic.