This action is brought on a-bond given by the defendant Parker as principal and the appellant as surety to obtain a liquor tax certificate authorizing the principal to traffic in liquors in the city of New York.- By the bond, Frank L. Parker, as principal, and the Fidelity and Casualty Company of New York, as surety, “ are held and firmly bound unto the People of the State of New York in tike penal sum of Sixteen Hundred. Dollars ; ” the bond .then recites that the principal was about to apply for a liquor tax certificate authorizing. said -principal to traffic in liquors at 121, 123, 125 West
The complaint alleges that the defendant Parker applied for a liquor tax certificate for the traffic in liquor by him under the provisions of subdivision 1 of section 11 of the Liquor Tax Law (Laws of 1896, chap. 112, as amd. by Laws of 1897, chap. 312) for and during the excise year beginning May 1, 1901; that simultaneously with the filing of said application statement, for the purpose of securing the issuance to him of the liquor tax certificate applied for, the defendant Parker presented to and filed with the Special Deputy Commissioner of Excise this bond, as required by the provisions of section 18 of the Liquor Tax Law (as amd. by Laws of 1897, chap 312), duly executed by the defendant; that upon the receipt of this application and bond a certificate for the traffic in liquors was issued to the said Parker, and the said Parker was the owner and holder of the said liquor tax certificate, and was carrying on the business for which such certificate was given at said premises. It further alleged that the defendant Parker, on the 20th, 21st, 25th and 27th days of March, 1902, and on the 2d day of April, 1902, did suffer and permit the said premises designated in said liquor tax certificate as those in which the traffic in
The defendant admits the execution and delivery of the bond and ' denies the other allegations of the complaint.
Upon the trial the issuance of the certificate was conceded. The bond and the application for the liquor tax certificate were produced and introduced in evidence. It was also proved that there was no transfer of that certificate during the • time it was in force up to April 30, 1902; that there was no surrender of such certificate under section 25 of the Liquor Tax Law (as amd. by Laws of 1900, chap. 367), and that this liquor tax certificate stood in the name of the defendant Parker during the entire excise year. A police officer testified that he went to Parker’s place of business with another officer on the 20th of March, 1902; that he also visited the premises on the 21st, 25th and 27th of March and the 2d of April, 1902; that on the twentieth of March he walked into the dining room, sat down at the table and ordered refreshments ; that he saw a number of women sitting there, several of whom. the witness knew to'' be street walkers; that while sitting-there one of the women came over and spoke to the witness, sat down at the table and agreed to meet the two officers after they were through eating; that On the twenty-first day of March, around eleven-thirty p. m., he again visited the restaurant, ordered something to eat, and after a few moments was solicited by a woman; that the woman said she had the proprietor’s permission to take men to her room; that she then passed out of the dining, room to the elevator with the witness and up to room 109, and was let in by a colored woman who was, apparently, an employee of the hotel; that on the twenty-fifth he returned to the hotel With another officer when this woman to whose room he went on the previous visit came over and brought with her a companion when the witness and
On behalf of the defendant Parker testified that in April, 1901, he took out this liquor tax certificate; that he continued to conduct the place until about the 1st of September, 1901; that about September 1,1901, he made a verbal transfer-of that business to a man named Colonel Fortune; that the witness was in ill-health and turned the business over to Fortune; that after that the defendant left and had nothing more to do with the business; that when he left he did nothing- with reference to the liquor tax certificate, and that he never authorized Colonel Fortune to use that certificate or to sell liquor under it, never authorized any one to sell liquor at the place in question after September 1, 1901. The cashier and bookkeeper of this hotel testified that Parker was proprietor of the place until about the 1st of September, 1901, when Colonel Fortune took possession of the place; that Fortune remained in possession until the 10th of October, 1901', and on the tenth of October one A. E. Ruehl came in; that shortly after Fortune left the hotel entirely, turning over the possession of the place to Ruehl on October tenth; that after that Ruehl paid the bills and hired the help; and this condition existed until May, 1902. Ruehl testified that he took possession of these premises on October tenth in the interest of the Ruehl Hotel Company, a corporation, under a verbal agreement with Colonel Fortune by which Ruehl was to pay his liabilities and give
Upon- this evidence the plaintiff moved for -the direction of a verdict and the .defendant moved for a dismissal of the complaint. The court denied the defendant’s motion and granted the plaintiff’s motion, and directed a .verdict for the plaintiff for the amount of the bond.
There was no request to submit any question to the jury. It Was not disputed but that this evidence was sufficient to sustain a verdict that the place was a disorderly place within the provisions of the bond ; and the only question presented is whether- the fact that the defendant Parker had surrendered the premises prior to the -time at which .the offense Was committed relieved the surety on the-bond. The bond recites the application for a liquor tax certificate under subdivision 1 of section 11 of the Liquor Tax Law (Laws of 1896, chap. 112, as amd. by Laws of 1897, chap. 312). The condition of the obligation is not that -the principal would not maintain a disorderly house upon the premises, but that the principal would not “ suffer or permit such premises to become disorderly.” If he did suffer or permit the premises to become disorderly then the obligation was to be in full force and effect. The fact that the principal withdrew from the actual management of the business without surrendering the certificate, or transferring it to' his successor, would not relieve either of the obligprs from liability to the State. The intention of providing a bond is clearly to prevent the premises, during the period that the certificate is in force, from being used for an illegal purpose; and that object would be rendered nugatory if the parties to it could escape liability upon proof that-the principal on the bond, who had assumed, the responsibility of preventing the place from being used for illegal purposes, could withdraw from active participation in the business* leaving his transferees or subordinates to maintain the place in violation of the law under the certificate obtained by the "execution-of
It follows that the judgment and order appealed from should be affirmed, with costs.
Patterson, O’Brien, Hatch and Laughlin, JJ., cpncurred.
Judgment and order affirmed, with costs.