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He has a right, in the absence of knowledge to the contrary, to assume that one who comes into his place and orders a sandwich or any other article of food does so because he desires the nourishment which it affords, and, if a single sandwich satisfies the desires of the person, it constitutes a meal, and the keeper of a hotel has the right to serve liquors to him with such meal." In Cullinan v. O'Connor, 100 App. Div. 142, 91 N. Y. Supp. 628, it was said:

"The statute and the decisions thereunder make it apparent that, in order to be a guest through service of a meal and to confer upon the hotel keeper the privilege of selling liquor upon Sunday, a person must resort to a place for the primary purpose of obtaining in good faith a meal. This purpose, when effectuated by the service upon the part of the hotel keeper of such meals, draws with it as an incidental and secondary matter the right to procure and serve liquor. It is so well established as to be elementary in this connection that the ordinary purpose of going to a hotel must not be to obtain liquor, and that such purpose will not serve as a protection to the hotel keep er for his Sunday sales, no matter how colored, disguised, or concealed, provided only the courts can detect the real object and distinguish the misrepresentation of the devices which are employed in the attempt to cloak and cover it."

But, to justify the proprietor of a hotel in furnishing to a transient guest liquor upon Sunday, the situation must be such as to indicate to a person of ordinary intelligence that the guest had resorted to the establishment to obtain, in good faith, a meal, and that the liquor he ordered was an incident to that meal; not that the object was to obtain liquor, ordering some article of food which was not consumed to ac complish that purpose. It is the obtaining of the meal in good faith which authorizes the hotel keeper, as a part of that meal, to furnish liquor, and not the ordering of a small portion of food for the purpose of so coloring the transaction that the liquor can be obtained without the meal. Thus the statute expressly requires that to constitute a person a guest it must appear that he resorted to the hotel for the purpose of obtaining a meal during the hours when meals were regularly served therein, and "actually orders and obtains at such time, in good faith, a meal therein." The statute thus requires good faith on the part of the person who is served in a hotel with liquor on Sunday, and the circumstances must be such that the hotel keeper is justified in assuming that a person resorting to his establishment does so for the purpose of obtaining, in good faith, a meal. Merely supplying an article of food with the liquor that is ordered, standing alone, does not justify the hotel keeper in furnishing liquor.

We think it conclusively appears in this case, from the circumstances surrounding the whole transaction and the absence of evidence that, at the time this liquor was furnished, the hotel was actually serv ing its guest with meals, as distinguished from supplying its customers with liquor, that the finding of the Special Term that the defendant was authorized on these days to supply persons frequenting the place with liquor cannot be sustained.

It follows, therefore, that the judgment and order appealed from must be reversed, with $10 costs and disbursements, and the motion to revoke the liquor tax certificate granted, with $10 costs.

PATTERSON, P. J., and CLARKE and SCOTT, JJ., concur.

and 136 New York State Reporter

LAUGHLIN, J. (dissenting). I agree with Mr. Justice INGRAHAM in his construction of the law, but I think the evidence fairly sustains the finding that the law was not violated, and that therefore the order should be affirmed.

With respect to the alleged violation of the 10th day of June, the respondent showed by six witnesses, three of whom appear to have been disinterested, that the special agents first ordered sandwiches, and were served with the sandwiches before they were served with the drinks. Where a party who has not a room in the hotel enters the eating room of a hotel on Sunday and first asks for food, and in connection with it asks for liquid refreshments, I think the proprietor, in the absence of other evidence of the purpose of the visit, is justified in assuming that the primary purpose is to obtain something to eat. Since it has been decided that a sandwich may constitute a meal, I think it is immaterial that the sandwich, after having been ordered first, is not eaten. It is not improbable that a man may think he has an appetite, and find when the food is placed before him that he has not. That cannot affect his original order for food, upon which the proprietor was justified in acting. With respect to the alleged violation on the 17th day of June, the respondent showed by five witnesses that the special agents first asked for four sandwiches, and that the sandwiches were served before the drinks were brought to the table.

I am of opinion, also, that the fair inference is that the room in which the sandwiches and drinks were served was the regular dining room of the hotel. The concession that the premises conformed to the law with respect to the requirements of a hotel was a concession that there was such a dining room, properly equipped with suitable tables, furniture, and accommodations, and kitchen conveniences for cooking. Subdivision 2, cl. "i," § 31, Liquor Tax Law (Laws 1896, p. 74, c. 112). I think the respondent, in view of this concession, was led to believe that the concession was with respect to this particular room as the dining room, and that he was justified in believing that the issue to be tried was whether drinks were served without a meal, and to that point alone the further evidence was addressed. The statute does not assume to prescribe the hours during which meals may be served in a hotel.

Another fact which tends to show that it is improbable that the law was violated on these occasions is that the special agents were recognized as such by the employés of the respondent before their orders were taken. No hotel proprietor will be secure in his liquor tax certificate, unless his right thereto may be sustained on the testimony of his employés, corroborated in a manner to satisfy the conscience of the court that the complainants, on entering the dining room, manifested that their primary purpose was to obtain food by first ordering something to eat.

(116 App. Div. 790)

MALONEY v. KLEIN et al.

(Supreme Court, Appellate Division, Second Department. January 11, 1907.) EXECUTION SUPPLEMENTARY PROCEEDINGS-RETURN OF EXECUTION.

The fact that after the sheriff had advertised land for sale under execution the creditor discovered that he would realize nothing because of incumbrances, and that at his request the sheriff abandoned the sale and returned the execution unsatisfied, was no ground for the vacation of an order for the examination of the judgment debtor.

[Ed. Note. For cases in point, see Cent. Dig. vol. 21, Execution, §§ 1108, 1142.]

Appeal from Westchester County Court.

Action by Annie Maloney against John S. Klein and another. Appeal by plaintiff from an order vacating an order for the examination of defendants, against whom plaintiff had obtained judgment. Reversed.

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

William Riley, for appellant.

PER CURIAM. The order was regularly obtained and should not have been vacated. Presumably the statement on information and belief in the affidavit of the judgment debtor that the execution was returned unsatisfied at the request of the plaintiff's attorney caused it to be vacated. But there was no proof of the fact; and, if there had been, it fully appears that a sale of the real estate which one of the judgment debtors owns would realize nothing, owing to the large incumbrances on it. That the sheriff advertised the sale of it and then abandoned it does not matter. The plaintiff is not obliged to resort to a sale that would probably only result in an expense to him. Moreover, the return of the sheriff, until impeached, is conclusive. The order should be reversed.

Order of the County Court of Westchester county reversed, with $10 costs and disbursements, and motion denied, with costs. All concur.

(116 App. Div. 726)

LEDOUX v. SAMUELS.

(Supreme Court, Appellate Division, Second Department. January 11, 1907.) 1. BANKRUPTCY-REAL PROPERTY-TITLE OF ASSIGNEE.

Where plaintiff was the owner of a strip of land at the time he became a bankrupt, his assignee in bankruptcy took title to the strip in trust for the benefit of creditors, though the land was not disclosed in the schedules, but title remained in the assignee until alienation by him, or until another title had been created by adverse possession.

[Ed. Note. For cases in point, see Cent. Dig. vol. 6, Bankruptcy, § 193.] 2. ADVERSE POSSESSION-COLOR OF TITLE.

When plaintiff became a bankrupt, he was the owner of a certain strip of land in question, and thereafter, while the title to the land was in plaintiff's assignee, plaintiff took title to land adjoining the strip from another

and 136 New York State Reporter

under a deed which included such strip. Held, that plaintiff's title to the strip was founded on a written instrument which constituted color of title, as provided by Code Civ. Proc. § 369, so that plaintiff's subsequent possession for a period of upwards of 20 years was sufficient to confer title by adverse possession.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 1, Adverse Possession, $415.]

Submission of controversy on agreed statement of facts between Paul Ledoux and Herman Samuels. Judgment for plaintiff.

Argued before HIRSCHBERG, P. J., and JENKS, HOOKER, MILLER, and GAYNOR, JJ.

George F. Alexander; for plaintiff.
Charles Reinhardt, for defendant.

HOOKER, J. This is a submitted controversy, and involves the title to a strip of land 4 inches wide and 100 feet long, on which is located the westerly one-half of a party wall. By deed recorded May 9, 1871, the plaintiff, Paul W. Ledoux, became seised of the entire block of land bounded by Margaretta street, Eldert street, Bushwick avenue, and Broadway, in the borough of Brooklyn. In the same year he built the party wall referred to, and prior to September, 1875, he had disposed of all of the block of land bounded by the four streets mentioned, except the strip 4 inches wide no Eldert street, 100 feet east from Broadway and running back 100 feet. On the 20th of September, 1875, the plaintiff, Paul W. Ledoux, was adjudged a bankrupt in proceedings in voluntary bankruptcy, and on March 21, 1876, was discharged from his debts. His petition and schedules in the bankruptcy proceedings, however, failed to show his ownership in the 4-inch strip of land. An assignee of his estate was appointed and qualified in the bankruptcy proceeding. The plaintiff was not aware, at the time of the bankruptcy, of the fact that the 4-inch strip. had not been disposed of and that the legal title was vested in him, and did not learn of that fact until 1879. In that year one Bernard Dewitt acquired title to the premises adjoining the strip, and by deed dated June 27, 1879, and recorded on August 4, 1879, conveyed to this plaintiff the land he had acquired; the discription including that land. and the 4-inch strip. In 1881 the plaintiff conveyed to Mary E. Thompson the land described in his deed from Dewitt, also including in the description the 4-inch strip. Some time thereafter his grantee, Mary E. Thompson, reconveyed to him, the plaintiff, and thereafter he conveyed a plot, including this 4-inch strip, to one Miller, who later conveyed to the wife of the plaintiff, and she, by deed dated November 18, 1891, and recorded September 22, 1904, deeded to the plaintiff. By agreement dated January 7, 1905, plaintiff agreed to sell and convey to the defendant, Herman Samuels, the tract of land bounded north by Halsey street, south by Eldert street, west by Broadway, and on the east by the east line of the 4-inch strip, and the controversy is whether or not the plaintiff is seised of marketable title, entitling the plaintiff to a decree for specific performance of that con

tract.

It must be evident that, upon the qualification of the plaintiff's assignee in bankruptcy, the assignee took legal title to this 4-inch strip in trust for the benefit of creditors, and this, even though the schedules failed to disclose the ownership of the plaintiff in the strip; and in him the title remained and was bound to remain until there had been an alienation by him, or until another title had sprung up by virtue of adverse possession. The plaintiff took title from Dewitt in 1879, in a deed which included this 4-inch strip in the description. Under the provisions of section 369 of the Code of Civil Procedure, the plaintiff's claim in 1879, being founded upon a written instrument, was such that he was then deemed to have been holding the land adversely. Entry and possession under a deed, without right in the grantor, is entry under color of title, and the possession is adverse. Sands v. Hughes, 53 N. Y. 287. The plaintiff, as grantee under deed to him of November, 1891, and his predecessors in title, have therefore occupied the land in question adversely for upwards of 20 years, and a title by adverse possession has arisen, which is good. "Title by adverse possession is equally strong as one obtained by grant." Sherman. v. Kane, 86 N. Y. 57, 64.

The plaintiff should have judgment, with costs. All concur.

(146 App. Div. 731)

McCLERG v. VIELEE, Justice of the Peace, et al.

(Supreme Court, Appellate Division, Second Department. January 11, 1907.) 1. PROCESS-ABUSE OF PROCESS-ACTION-COMPLAINT.

The complaint in an action against a justice of the peace and the overseer of highways of a town alleged that defendants illegally and without jurisdiction caused a legal process to issue against plaintiff, consisting of a summons in an action in which the overseer of highways was plaintiff ; that the summons was served and defendants entered judgment for a fine and penalty, by reason of plaintiff's failure to pay a highway tax in the town in question; that plaintiff was arrested on a body execution and imprisoned, whereby he suffered injuries, etc.; that the arrest and proceedings were an abuse of legal process; and that plaintiff was not liable for the road tax in such town. Held, that the complaint failed to state a cause of action for abuse of process.

2. MALICIOUS PROSECUTION-COMPLAINT.

The complaint could not be sustained as setting forth a cause of action for malicious prosecution.

3. FALSE IMPRISONMENT-COMPLAINT.

The complaint could not be sustained as stating a cause of action for false imprisonment.

Appeal from Special Term, Orange County.

Action by Thomas McClerg against S. E. Vielee, as justice of the peace of town of Mt. Hope, and another, as overseer of highways. Appeal by defendants from a judgment overruling their demurrer to the complaint. Reversed, and demurrer sustained, with leave to plaintiff to plead over.

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

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