The order should be affirmed, with-costs.
.The certificate was issued April 28, 1905, to expire April 30, 1906, authorizing the defendant to traffic in liquor .at premises situate on the southwest corner of Wasson avenue.and Iron street, Lachawanna, Erie county, H. Y; The petitioner claimed that on October ' 13,1905, the defendant permitted gambling in said premises by means of a nickel slot machine. The defendant denied this. .The evidence *623was taken before a referee and reported to the court, and the court made the order appealed from based upon such evidence. It appeared by the evidence that the defendant’s brother owned the building in which defendant carried on his business. The defendant leased the front room on the first floor, about twenty-six feet square, for his business, and occupied no other part of the building. Just back of this room and adjoining it was anothel* room leased by one Smiegel and occupied for a billiard room wliich-he conducted. Other parts of the building were leased and occupied by other parties. There was a partition between the two rooms, and a door in such partition ■six feet wide. There was a door leading from defendant’s room out towards the street, and two doors from the back room, one at the side leading out .doors, and the other at the back leading to other parts of the building. The door in the partition between the two rooms was usually left open._ Smiegel leased the back room from June 25, 1905. Neither of these two men was interested in the business of the other, or. in the room rented by him. Their business was entirely separate, except that people playing billiards ordered-drinks from defendant’s room when they desired. The slot machine was put in the back of the billiard room by Smiegel about October . 5, 1905. As soon as defendant saw the slot machine there he told Smiegel it was unlawful and he must take it out, and if he did not, he would tell the owner of the building and he would put it out. Smiegel did not take the machine out, and defendant complained to the owner of the building about it, who spoke to Smiegel, and he said he would take it out. The machine was still there on the 13th of October, 1905, when the agents of the State Excise Commissioner went there and used it, and upon their evidence the proceeding was based and the revocation of the license sought to be obtained. N o claim has been made that there was any collusion between defendant' and Smiegel with reference to the maintenance of the machine. From the first the defendant insisted it should be taken' out—• we desire this to be distinctly, understood. The Special Term justice, in his opinion, expressly says: “ No question of collusion or bad .faith has been suggested in this matter,” and the concession was made by counsel in this court and on the argument-to the same effect. There is no evidence in the record tending to show collusion or fraud or bad faith on defendant’s part. The defendant *624always claimed,.and now claims, that he tried to have the machine taken out when it was first put in, and did all he. could to procure it to be done, and that he had no power himself to remove it or prevent .its maintenance and use by Smiegel. It. will be seen that, while in the petition it was claimed that the defendant .permitted gambling in his premises,, the evidence .'showed ¡that the gambling was in the premises occupied by Smiegel, and the license was sought to be revoked finally upon the claim that defendant suffered and permitted the gambling, to he carried on in a.plaee appertaining to or connected with his premises. The matter was disposed of at Special Term upon the holding that, even though the, place where the gambling was carried on might he regarded as one appertaining to or connected with the defendant’s premises, still the defendant did, not suffer or permit it to be maintained there, and the case was not one covered' by the statute, In this conclusion we concur with the Special Term upon the .grounds very fully set forth in the opinion there given. We would not regard it necessary to add any opinion of our own, except that we want to make it entirely clear that our affirmance of this order is, not to be regarded, as a precedent in cases where premises are located as these .are, but where there is connivance and- collusion between the parties to maintain and cai’ry on the gambling. In such case there would be a violation of the statute and the license should he revoked. That element con- ■ cededly does not exist in the present case, and we are deciding tMscase in view of the conditions here existing and not establishing a precedent for any -other different case.
All concurred, except Ebuse and Robson, JJ., who dissented in' an opinion by Ebuse, J.