In re Lyman

Truax, J. It is claimed by the learned counsel for the respondent that a decision of this case is no longer necessary, because the liquor tax certificate which this proceeding is brought to have canceled expired by act of law on the 1st day of May, 1899, and that, therefore, the decision of this case would be the decision of an academic question and not of an actual litigation. There is no force in this claim. The proceeding was taken under subdivision 2 of section 28 of the Liquor Tax Law. There has been a reference in it as provided by that statute, and, under that section, costs may be awarded in favor of and against any party thereto. Among such costs would be the expenses incurred upon the reference. For this reason alone I think the relator has the right to have it determined whether he shall or shall not pay these costs. Applying the rules heretofore laid down by the courts (Matter of Zinzow, 38 Misc. Rep. 653; People ex rel. Cairns v. Murray, 148 N. Y. 171), the liquor store of which the relator complains is within 200 feet of a [409] building used exclusively as a school. I am also of the opinion that the respondent has violated the provisions of the Liquor Tax Law in selling liquors on Sunday. The burden of showing that his building was a hotel and conformed to the requirements imposed by section 31 of the Liquor Tax Law was upon the respondent. Matter of Lyman, 28 App. Div. 127. The evidence shows that drinks were sold without meals. Two of the witnesses for the relator swore that they had no drinks without meals, but, taking the testimony of the waiter, who testified that he served said drinks, as true, it shows that no meals were ordered by the persons to whom the drinks were delivered, and that none were paid for by them. To put a sandwich beside a drink when a sandwich is not ordered, and to take it away again without having received pay therefor, is not serving in good faith a meal with a drink. Motion is granted, with costs. Motion granted, with costs.