I cannot concur in a reversal of that part of the order appealed from on the grounds stated by Mr. Justice Betts. I think the words “suffer, permit or have,” as used in the Liquor Tax Law (Consol. Laws, chap. 34 [Laws of 1909, chap. 39], § 30, subd. E, as amd. by Laws of 1910, chap. 494), mean a voluntary suffering, permitting or having on the part of the license holder. As a legal proposition the mere fact that there exists, against the protest and without the assent or connivance of the liquor tax holder, an opening or means of entrance or passageway between the place where the traffic in liquors is carried on and another room where gambling is permitted, does not authorize the cancellation of a liquor tax certificate. The opening or means of communication must be attributable to him and such a situation existing without his knowledge or against his protest does not come within the inhibition of the statute. I think, however, from the facts appearing in the present case it is quite apparent that the passageway from the saloon to the gambling establishment existed with the full knowledge and concurrence and acquiescence of the present liquor tax holder and his assignor. There was a stairway leading from' Broadway to the second story, but for reasons best known to the parties that stairway was not included in the lease to the Eastern Telegraph Company, but entrance was provided for from the rear on James street through the saloon. Such a situation had existed for years. The premises on the *296ground floor were leased for saloon purposes only for the term of ten years and six months from November, 1906. The premises are described as No. 560 Broadway extending through to James street. Nothing appears in the lease reserving to the landlord the right to permit the tenant of the second floor to enter from James street through the back door of the saloon. So far as the lease is concerned the tenant of the saloon had the right to lock his back door and keep it locked and thereby prevent the tenant of the second floor from entering through the same. If there was any -understanding between the landlord and the' tenant of the saloon that the upstairs tenant should have an entrance through the-James street door it existed aside from the lease itself.' The assignor of the liquor tax holder and original tenant testifies that he changed the lock on the stairway entrance and locked it against the upstairs tenant, and that the agent of the landlord told him he must not lock the door against the tenant because it was the only means of entrance, and that he abandoned his purpose of keeping the door locked and acquiesced in the manner of entering. In view of the fact that the tenant apparently- had the perfect right to lock his own back door and prevent the upstairs tenant from entering through it and the inconvenience attending the permitting of an entrance through that door in waiting nights until all the patrons and tenants on the second floor should choose to go home, which was testified to be very late on some occasions and after closing hours of the saloon, it is perfectly manifest that the saloon tenant acquiesced in such manner of entering and voluntarily permitted the opening and passageway from his saloon to the upper floor where gambling was carried on. It is upon this latter ground that I concur in a reversal of the order.
Order, as far as appealed from, reverséd, with costs, and liquor tax certificate revoked because of violation of subdivision E of section 30 of the Liquor Tax Law, and for the reasons stated in the final order.