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and 136 New York State Reporter way, simply because the one is within and the other without the corporate limits. Each case must be determined by the conditions and necessities shown to exist. It is sufficient in the case at bar to say that the record discloses no conditions or necessities requiring the application of a different rule than that established by the Court of Appeals in the Eels Case. While that court has determined that a different rule may exist and govern the rights of owners of the fee of streets in a village than is held applicable to the owners of the fee of country highways, it has not held that such different rule does exist. We believe that the rule applicable to a village of 1,000 inhabitants ought to be the same as that in purely rural districts, and that the appellant has attempted to use the streets of this village for other than street purposes and that the judgment was proper.

The judgment must therefore be affirmed, with costs. All concur.

(116 App. Div. 796)

WANSER v. DE NYSE et al. (Supreme Court, Appellate Division, Second Department. January 11, 1907.) PARTITION-SALE-SUFFICIENCY OF TITLE.

A purchaser at a partition sale will not be relieved from his contract. because it does not appear from the records that all the heirs at law of a deceased owner were included in the title deeds, where there is no evidence that there are any persons in being who might assert rights to the premises, and they have been held and cultivated by those from whom the title is derived without question for 40 years.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 38, Partition, $$ 382, 384.]

Appeal from Special Term.

Action by Richard S. Wanser against John De Nyse and others. From an order requiring Franklin S. Holmes, the purchaser of premises sold under an interlocutory decree, to complete his purchase, and from an order denving his motion of resettlement, he appeals. Affirmed.

Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, RICH, and MILLER, JJ.

A. P. Bachman, for appellant.
Washington Sackmann, for respondents.

WOODWARD, J. This action was brought to partition certain premises in the borough of Brooklyn, and under the interlocutory decree the premises were sold by the referee appointed for that purpose to Franklin S. Holmes, who paid 10 per cent. of the purchase price, and undertook to complete the purchase on a given date. Failing to complete the purchase, a motion was made to compel the purchaser to fulfill his contract, and from the order directing the same, and from an order denying a motion of resettlement, this appeal is taken by the purchaser.

The purchaser upon this appeal insists that he is willing to complete his purchase, but urges that the title offered is not merchantable, inasmuch as, upon a search of the records, it appears that the premises were owned by one Francis Oliver, a colored man, who died intestate and seised of the saine about the year 1844; and while the record shows that subsequently, and in 1865 and 1866, 39 quitclaim and bargain and sale deeds of the premises were recorded in Kings county, it does not affirmatively appear that all of the heirs at law of the said Francis Oliver were included in these title deeds. The purchaser does not attempt to show, by affidavit or otherwise, that there are any persons in being who might assert rights to the premises, and it appears that the premises have been held and cultivated by those from whom the present title is derived without question since the year 1865, and it is difficult to understand how the purchaser can hope to be relieved of his purchase under such circumstances. It appears, on the other hand, by affidavits, that there was an intelligently directed effort on the part of an attorney in the years 1865 and 1866 to secure a good title to the premises from the heirs of Francis Oliver, and that the premises have since been held and cultivated under that title, and, in the absence of some fact tending to show that the rights of all the heirs have not been extinguished, we are unable to discover the existence of such a doubt as to entitle the purchaser to any relief from his contract.

It is probably true that it would have been the better practice for the respondent to have submitted all of his affidavits to the opposing attorney in advance of the argument of the motion ; but we do not find that rule 21 of the general rules of practice requires this in this district, and it does not appear to us very important, in view of the fact that the purchaser has not attempted to show any reason why he should not complete his purchase. The rule is that, if a defect is patent in the record of title, the purchaser may rest thereon; otherwise, he must give evidence in justification of his refusal. Title Guarantee & Trust Co. v. Fallon, 101 App. Div. 187, 189, 91 N. Y. Supp. 197. Here there is no defect patent in the record title. There is a mere possibility that all of the heirs at law may not have been found and dealt with in the effort to get a good title back in 1865; and this, it seems to us, is too remote to found a reasonable justification upon for refusing to complete the purchase. See Empire Realty Corporation v. Sayre, 107 App. Div. 415, 418, 95 N. Y. Supp. 371.

The orders appealed from should be affirmed, with costs. All concur.

(117 App. Div. 5)

CLEMENT, State Excise Com'r, v. MARTIN. (Supreme Court, Appellate Division, First Department. January 11, 1907.) INTOXICATING LIQUORS-SALE AT PROHIBITED TIME. I

Liquor Tax Law, Laws 1896, p. 73, c. 112, 31, as amended by Laws 1904, p. 368, c. 205, makes it unlawful to sell liquor on Sunday, but provides that the holder of a tax certificate who is the keeper of a hotel may sell liquor to the guests with their meals. “Hotel" is defined as a building regularly used as such for the feeding and lodging of guests, and "guest" is defined as one who in good faith, during the hours when meals are served, resorts to the hotel for the purpose of obtaining and actually orders and obtains, a meal. On a petition for the revocation of a liquor license, it was admitted that the premises conformed to the law with respect to the requirements of a hotel, but it was shown that on & Sunday agents of the excise department entered a sitting room at the and 136 New York State Reporter rear of the barroom, and found the room furnished with tables, and people sitting about at tables ordering and being served with drinks, that the agents purchased sandwiches, which were served, and that they then purchased drinks. It appeared that there were no knives or forks on the tables, and none of the usual appliances for a meal. Held, that the facts showed a violation of the statute.

Laughlin, J., dissenting.

Appeal from Special Term, New York County.

Petition by Maynard N. Clement, as state commissioner of excise, for an order revoking and canceling the liquor tax certificate issued to Henrietta Martin. From an order denying the petitioner's motion, and from a judgment for costs, petitioner appeals. Reversed, and motion granted.

Argued hofpre PATTERSON, P. J., and INGRAHAM, LAUGHLIN, CLARKE, and SCOTT, JJ.

Herbert H. Kellogg, for appellant.
P. A. McManus, for respondent.

INGRAHAM, J. This was a proceeding instituted by the state commissioner of excise to revoke a liquor tax certificate based upon a violation of the liquor tax law by selling liquor on Sundays. The defendant interposed an answer to the petition, alleging that she was the keeper of a hotel and that the sales on Sunday were made at the time mentioned in the petition to guests of the hotel upon said premises, with meals, and not in the barroom, or other similar room. Upon the petition and answer a referee was appointed to take proof, and upon the evidence taken before the referee the motion was denied and the proceeding dismissed.

It appeared that special agents of the excise department went to the defendant's place of business, 299 Seventh avenue, in the city of New York, on June 10, 1906, and entered a sitting room at the rear of the barroom, which was furnished with tables; that two of these special agents ordered whisky and the others beer, which orders were served by the defendant and consumed on the premises; that the agents then paid for what they had received ; that there were about 15 people sitting at tables in the room, ordering and being served with drinks; that this room was connected with the street, the door to which was open, and was connected with the barroom by a narrow passage. These special agents testified that they neither ordered nor were served with any food at the time they ordered the drinks, but that there were some scraps of bread on a plate on the table; that neither of the agents partook of any of these scraps of bread, but that they were left on the table in the same condition as when the agents entered the room; that there were about nine tables in the room at which there were a number of people sitting ; that there were none of the usual appliances of a restaurant or eating house; that there were no knives or forks, but each table had a plate on it with some kind of food on each plate ; that at the table at which the special agents sat and were served with drinks there was but one plate. The application for a liquor tax certificate was then introduced in evidence, in which the applicant stated that the business to be carried on in connection with the liquor business was that of a hotel; that such hotel conformed to the laws, ordinances, rules, and regulations relating to hotels and hotel keepers, and contained at least 10 bedrooms above the basement, and was properly furnished to accommodate lodgers. Upon this application a liquor tax certificate was issued to the applicant.

There was also evidence that on the 17th of June, 1906, special agents of the excise department went to these premises, into the sitting room, by the side entrance, took a seat at a table, and when the waiter came to them ordered whisky. The waiter then asked them what they would have to eat, to which the agents replied, “Nothing." The waiter then told them they would have to order something, whereupon one of the agents told the waiter to bring in anything. The waiter then brought four glasses of whisky, four glasses of water, and four sandwiches on four plates, for which the agents paid 70 cents for the whisky and 20 cents for the sandwiches. None of the agents partook of any of the sandwiches, and they were left on the table where the waiter placed them, in the same condition as they were when served. Other people were in the room, being served with whisky or beer. There were none of the usual appliances for a meal on any of the tables. People were coming and going all the time, and the witnesses saw no meals being served at any of these tables. The petitioner then admitted that the premises No. 299 Seventh avenue complied with the requirements of the liquor tax law in respect to hotels.

On behalf of the defendant there was testimony to the effect that these special agents came into her place of business on June 10, 1906, sat down at a table, and ordered four sandwiches, two whiskies, and two beers, and paid the bill to the waiter; that they were told they would have to order sandwiches in order to get anything to drink, and the sandwiches were brought to them before the liquor; that on June 17, 1906, the four agents entered the hotel and asked the waiter to bring them four sandwiches, and that they then ordered four drinks of whisky. The waiter who served these special agents on June 10th testified that the men came into the room and asked for four corned-beef sandwiches; that they then ordered two whiskies and two glasses of beer: that he charged them 20 cents for the sandwiches and 35 cents for the drinks; that afterwards they ordered four 10-cent cigars, which were also furnished. The same witness testified that on June 17th the four agents again entered the room and asked the witness what he had to eat; that they ordered four corned beef sandwiches, which were served, and then ordered four whiskies. Both the sandwiches and liquor they paid for.

The sale of liquor on Sunday being conceded, the only question was whether the sale was allowed by section 31 of the liquor tax law (chapter 112, p. 73, Laws of 1896, as amended by chapter 205, p. 368, Laws of 1904). That section provides that:

"It shall not be lawful for any * * * person, whether having paid such tax or not, to sell, ofter or expose for sale, or give away any liquor: (a) On Sunday; or before five o'clock a. m. on Monday. * * * The holder of a liquor tax certificate under subdivision 1 of section 11 of this act, who is the keeper of a hotel, may sell liquor to the guests of such hotel, * * * with their meals, or in their rooms or apartments therein. * * * The term

and 136 New York State Reporter 'hotel as used in this act shall mean a building regularly used and kept open as such for the feeding and lodging of guests, where all who conduct themselves properly, and who are able and ready to pay for their entertainment, are received if there be accommodations for them, and who, without any sti: pulated engagement as to the duration of their stay, or as to the rate of compensation, are, while there, supplied, at a reasonable charge, with their meals lodgings, refreshment and such service and attention as are necessarily incident to the use of the place as a temporary home, and in which the only other dweiler shall be the family and servants of the hotel keeper. * * * A guest of a hotel, within the meaning of this exception to section 31 of this act, is (1) a person who in good faith occupies a room in a hotel; * (2) a person who, during the hours when meals are regularly served therein, resorts to the hotel for the purpose of obtaining and actually orders and obtains at such time, in good faith, a meal therein."

· To justify a holder of a liquor tax certificate, therefore, in selling liquor on Sunday, it must appear that the person to whom the liquor was sold was one who, in good faith, occupied a room in the hotel, or a person who, “during the hours when meals are regularly served therein, resorts to the hotel for the purpose of obtaining and actually orders and obtains at such time, in good faith, a meal therein.” It is settled that, when it is established that liquor was sold upon a Sunday by a person holding a liquor tax certificate, the holder of the certificate must establish that the person furnished with liquor is a guest of the hotel. People v. Crotty, 22 App. Div. 77, 47 N. Y. Supp. 845; Cullinan v. O'Connor, 100 App. Div. 142, 91 N. Y. Supp. 628. It must tserefore appear that the person to whom the liquor was sold was a person who, “during the hours when meals are regularly served therein, resorts to the hotel for the purpose of obtaining, and actually orders and obtains at such time, in good faith, a meal therein.”

The testimony of the defendant does not make these persons to whom the liquor was served on June 10th and 17th guests of the hotel, within this provision of the statute. There was no evidence that at the time these persons were served “meals were regularly served" in this place, or that these persons went to this place for the purpose of obtaining, in good faith, a meal. While the defendant was justified in acting upon appearances, and if, from the surrounding circumstances, the person to whom this liquor was served apparently in good faith ordered a meal, and with it, and as a part of the meal, the liquor that was furnished, the defendant would be within the exception provided for by this section of the statute. The question in each case is one of fact, to be determined upon the evidence. In this case, none of the usual accessories with which meals are served were in use, and there was nothing to indicate that meals were being served to the guests of the hotel.

It is quite impossible to lay down any hard and fast rule as to what shall constitute a meal. As was said in Matter of Cullinan, 93 App. Div. 427, 87 N. Y. Supp. 660:

"There can be no reasonable doubt that under some circumstances a sandwich and a drink of whisky or other beverage constitute a meal. * * We apprehend, under the liberal construction to which a revenue measure is entitled, and considering the forfeiture which is worked by a violation of the provisions of the statute, that it is not the duty of the respondent to inquire diligently into the motives which actuate those who frequent his premises

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