People ex rel. Ernest Ochs, Inc. v. Hilliard

Laughlin, J.: The relator conducts a brewery. It advanced to Carl Schramek and Gustave Korn, who applied to the excise department for a liquor tax certificate, the amount necessary to pay the liquor tax and took an assignment of the certificate containing the usual power of attorney authorizing the brewery to surrender the certificate and [72] receive any rebate to which the holders might become entitled. The saloon was destroyed by fire and was not rebuilt: The relator applied to the Commissioner of Excise for the cancellation of the certificate and for a rebate receipt which was refused, and this pro-ceeding was instituted to enforce that demand. It is conceded that Schramek was not a citizen of the United States at the time the application was made for a liquor tax certificate. Section 23 of the Liquor Tax Law (Laws of 1896, chap. 112, as amd. by Laws of 1900, chap. 367) enumerates the persons to whom liquor tax certificates shall not be issued; and subdivision 3 thereof provides as follows: “Ho copartnership unless one or more of the members of such copartnership,. owning at least one-half interest in the business thereof, shall be a resident of this State and a citizen of the United States.’’' Korn was a resident of this State and a citizen of the United States. It was stated in the application that Schramek and Korn were copartners; that Korn was a citizen and a resident of the State and owned a one-half interest in the business. The proceeding was. resisted by the commissioner upon the ground that the representation contained in the application concerning this copartnership, and Korn’s interest therein was false. The evidence clearly shows that, they were not copartners in fact. They represented that they were copartners and, doubtless, they would be liable as such to persons dealing with them on the strength of these representations. The. relator contends that it is innocent and, having parted with its money on,the faith of the liquor tax certificate issued by the State and in ignorance of the fact that they were not copartners, it should be protected and permitted to recover the rebate. The State is also innocent, and there is,nothing upon which to base an estoppel. Its officers were deceived and led to issue the certificate by the-fraud if not perjury of the relator’s assignors. The relator’s claim against the' Excise Department is founded on the liquor tax certificate which has been assigned to it. Manifestly. the right of the assignee to the rebate is no greater than would be that of its assignors had not the certificate been assigned. (People ex rel. Miller v. Lyman, 156 N. Y. 407; People ex rel. Frank Brewery v. Cullinan, 168 id. 258.) The contract between the. People of the State and those to whom the liquor tax certificate was. issued with reference to allowing any rebate, was conditioned upon [73] the truthfulness of their application and their right to hold a liquor tax certificate; and any false statements in the application in that regard vitiated the certificate in their hands and in the hands of their assignee as well. (Liquor Tax Law, § 25, as amd. by Laws of 1900, chap, 367; Lyman v. Schermerhorn, 167 N. Y. 113; People ex rel. Frank Brewery v. Cullinan, supra; People ex rel. Seitz v. Lyman, 59 App. Div. 172.) Inasmuch as they were not eligible to traffic in the liquor business, the certificate issued to them on their false representation was void, and no right to recover rebate can be founded thereon. It follows that the order should be affirmed, with costs. Van Brunt, P. J., Ingraham and McLaughlin, JJ., concurred; O’Brien, J., dissented.'