The first question presented is whether, on the evidence, the premises were so occupied on March 23, 1896. The answer turns, . upon whether the use to which such premises were then put constituted them a hotel or a mere boarding house. I am inclined to-think that the definition of a hotel, as given in the statute itself,, should control in this case. ' If the building in question was then “ regularly used and kept open as such for the feeding and lodging of guests,” and there were, at least, six furnished bedrooms for their occupancy therein, and there were no dwellers therein other than the family and servants of the hotelkeeper, it was a hotel within the meaning of the statute. See section 31 of the Liquor Tax Law,, as amended by section 22 of chapter 312 of the Laws of 1897.
Cummings, who built the building in 1892, and who himself occupied it until May, 1896, testified that there wrere then more *237"than eight bedrooms in it, and that he at all times during that period entertained guests for hire, any one who came, either for •■single meals, lodging or board. And it also appears that during that period a few such traveling guests were entertained. But it is ■also apparent that most of those who occupied his house were ■boarders at agreed prices by the week or month. From the time it was built a sign designating it as a “ Boarding House ” was kept upon the building. Cummings testified: “ I built the house * * * and •called it a boarding house.” There was no notice or advertisement •anywhere inside or outside of the house designating it as a hotel, or indicating that transient guests would be received there; and I have no idea that Cummings himself considered that he was keeping anything more than a boarding house. During several years while he occupied it he gave up a large part of the first floor to a ¡grocery store, which he himself kept, and he at no time sold any liquor on the premises.
Yet it cannot be fairly disputed but that he received and cared •for every traveler or transient guest that applied, and it is conceded .that he had the requisite number of rooms and there were then no other dwellers in the building. The fact that the guests were very few probably should not control the character of the business which he carried on there. I do not know that we can say, on the evidence, that he did not regularly keep the place open “ for the feeding and lodging of guests.” Hence it would seem to have then been used as a hotel, within the definition of the law.
But the further question remains, whether, after the passage of isuch law, the premises were not abandoned as a hotel; and. so the right to a certificate, without the consent of those dwelling within 300 feet thereof, lost.
If the subsequent acts of the owner justify the conclusion that lie intended to discontinue or abandon the use of the building as a hotel, then his right to a certificate without the consents was lost. (Matter of Hawkins, 165 N. Y. 188, 192.) It is claimed by the .appellant that the evidence warrants such conclusion.
It is apparent that at times since March 23, 1896, the use of the premises would not have constituted it a hotel within the meaning ■of the Liquor Tax Law. After 1896 the part used by Cummings ns a grocery store was leased by him to Bartlett as a millinery shop, *238and rooms in which Bartlett’s family dwelt and kept- house. - Humphreys also leased from him a room-for a barber' shop, and also-other rooms in which his family kept - house. On the third floor-rooms-were let'to'a dressmaker, who dwelt therein. Cummings, himself retained rooms in the building, in which he and his family-kept house. The rest of the house seems to have been leased to a. tenant, who kept it as a boarding house, but received transient guests, and travelers whenever they applied. ■ During a portion of this, time, however, the rooms under the-control of the tenant, and which he could apply to the use of boarders or transient guests, were reduced to five. Thus it is evident that the building for a year- or more before Hillman bought it and obtained his certificate, .was not; in fact used as a hotel within the meaning of the law. The larger part of the building was used substantially, as a tenement house, and a part only, and that not enough to provide the requisite number of sleeping rooms, was given up to a boarding house and hotel. Dot these facts' indicate an intent on Cummings’- part to abandon the. building as a hotel ? Assuming, as we must, that Cummings knew' what constituted a hotel within the meaning of the Liquor Tax Law¿ it- seems clear' that he was willing to use his building in a manner that would exclude it from that category, and thus deliberately gave' up the right to a certificate without consents, which the law gave.him had the use continued as it was in 1896. If he, himself, just, prior to his sale to Hillman, had asked for a certificate without consents, on the ground that-on March 23,1896, he kept a hotel there, the plain answer would have been that since then he had given the business up to another use, and that as then used it did not answer the. requirements of a hotel. It is easier to reach this conclusion from, the fact that Cummings himself -never sought to -sell liquor on the-.premises; never sought to avail himself of any of the privileges of a hotelkeeper, as applicable to the business of selling liquor, and in fact all the time considered the business as that of a boarding house rather than of a hotel. Each of-his tenants after 1896 testified that, they leased it as a boarding house, and Cummings does not appear to-have ever claimed anything more for it. In the face of this conduct on Cummings’ part it is; straining .the -evidence beyond warrant to. hold that his grantee may now claim that the right to a certificate, without the'-consents still attaches to this property. •
*239Without considering the other questions raised by the appellant, I conclude that the order and judgment should be reversed on the law and the facts, and that the application of the petitioner should be granted:
All concurred.
Order and judgment reversed on law and facts, with costs, and the application of petitioner granted, with costs.