In re Clement

Kruse, J.

(dissenting):

As I view this case it presents' a plain, but unsuccessful attempt upon the part of the licensee, whose liquor tax certificate the State Commissioner of Excise seeks to have revoked,, to evade the provisions of the Liquor Tax Law relating to gambling. That law provides:

“Eo corporation, association, copartnership, or person, who, as owner or agent, shall suffer or permit any gambling to be done in. *625the place designated by the liquor tax certificate as that in. which the traffic in liquors is to be carried on, or in any yard, booth, garden or any other place appertaining thereto or connected therewith, or suffer or permit, such premises to become disorderly, or carries on or permits to be carried on or is interested in any traffic, business or occupation, the carrying on of which is a violation of law,” shall traffic in liquors. (Liquor Tax Law [Laws of 1896, chap. 112], § 23, subd. 7, as amd. by Laws of 1900, chap. 367, and Laws of 1905, chap. 680.) An applicant for a liquor tax certificate is also required to sign and swear to a statement containing among other things : “ The premises where such business is to be carried on, stating the street and number, if the premises have a street and number, and otherwise such- apt description as will reasonably indicate the locality thereof, and also the specific location on the premises of. the bar or place at which liquors are to be sold.” (Liquor Tax Law, § 17, subd.- 3, as amd'. by Laws of 1897, chap. 3!2.)

The petition in this proceeding states that the applicant presented a verified statement, under subdivision 1 of section 11 of the Liquor Tax Law*, relative to the traffic in liquors by the -applicant at premises situated on the southwest corner of Wasson avenue and Iron street, Lackawanna, Erie county, X. Y. What other facts were set forth in the statement does not appear ; the statement itself is not contained in the record. The petition further alleges that the tax was paid and the liquor tax certificate issued, designating the place where the traffic in liquor was to be carried on thereunder, as specified in the application statement. These allegations are not denied by the answer.

It appears by the evidence that the building in which the liquor business was carried on was owned by the brother of the licensee. There was a pool room back of the barroom, and for at least a part of the time while the gambling machine was in the pool room, the door in the side street leading into the pool room was permanently closed, so that customers of Jhe pool room were required t.o go *626through the barroom.' The barroom proper was twenty-six feet square. While there was a partition between the pool room and the barroom, "there was. an open archway in the middle of the .partition making practically one room. The archway, was six feet wide with ten feet of partition on • ea.cli side. There were sliding doors • but they were very" seldom • closed. The licensee himself testified that somebody might possibly by mistake or in fun shut, themas a rule they were not closed. The gambling machine was • placed in the pool room nearly opposite the archway. It could be seen from the liar, and persons went back and forth patronizing the bar, pool tables and gambling machine. The licensee claims that he was not interested in the pool room business and that he had no control over" the pool room; that his brother leased to- him only the barroom; lie admitted, however, that Smiegel, the man who, as he claims; ran the pool room and who- tended bar for him when he was not there, took drinks to customers in the pool room, but denied that he personally ever served drinks'in the pool room; Upon that subject, he testified: Q. Sometimes your customers would go into the pool room and- watch the people playing pool, would they not ? A. Yes, sir. Q. And- sometimes you would- serve them cigars and drinks -in the pool room ? A. I never took any drink there. Whenever they got through playing" and wanted a drink, they. - would call for it, and the one who was running the pool room would come to me and pay for the drinks and take the drinks over to them. Q. And ordinarily that was Smiegel, wa'sn’t" it? A. Yes, sir. Q. And Smiegel frequently came and got drinks and carried them to the customers iri and during the daytime in October last? A. Yes, sir.” •

Whether this pool room is to be regarded as a part of the barroom or not, I have no doubt that the licensee had the legal right Under his liquor tax certificate to serve his customers in the pool room, and it was so used and a part of the licensed premises.

It is true that the licensee testified that he complained of the use of the machine and demanded that it-be taken out, but this was not . sufficient to absolve him from’ the consequences of its being used, and, besides, I am not persuaded that he desired or expected that the machine would be removed and the gambling operations cease. It would have been an easy matter for him to have closed the doors *627and kept them closed and stop the serving of liquors in the 'pool room. ' "

It is, however, éarnestly contended on his part that since the licensee had a lease of only twenty-six feet square where ,the bar was located, lie had no control over the pool room, and that, therefore, he was not responsible for the gambling .which was done in the pool room, and so it is claimed that he did not permit or suffer the gambling. This seems to have been the view of the learned justice at Special Term. It does not seem to me that a licensee can thus absolve himself from responsibility for the premises becoming disorderly. If this were permissible the licensee might have taken a lease of one end of liis barroom sufficient for the bar and disclaim any responsibility for what occurred in any part of the room away ■from the. bar. He might even refrain from acquiring any right to the room or premises save that of selling liquor over the bar, leaving the room to be used and occupied by others for other purposes, and thus escape the consequences Which he would otherwise" incur. If persons who traffic in intoxicating liquors may thus relieve themselves from responsibility, it affords an easy way of evading the provisions- of the Liquor Tax Law against gambling and other disorderly practices being.carried on in connection with that business, and practically nullifies and makes ineffective that salutary provision! "

I think that the order should be reversed and the liquor " tax; certificate revoked and canceled.

Hobson, J., concurred.

Order affirmed, "with costs.

See Liquor Tax Law, § 11, suM. 1, as amd. by Laws of 1903, chap. 115.— [Rep.