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formation could therefore only be secured by making extracts from the books of the company. This may not be done under an order to examine a party before trial. Subdivision 7 of section 872 of the Code of Civil Procedure, relating to an examination and inspection of the books of a corporation, is intended to compel the production of such books in order that they may be used simply as an incident and in connection with the oral examination of a witness, who can testify from them, and not for the purpose of allowing an inspection and examination of them by the adverse party. People v. Armour, 18 App. Div. 584, 46 N. Y. Supp. 317; Duffy v. Cons. Gas. Co., 59 App. Div. 580, 69 N. Y. Supp. 635; Matter of Sayre, 70 App. Div. 329, 75 N. Y. Supp. 286. The proceeding for the discovery of papers (Code Civ. Proc. $$ 803-809) is entirely distinct from that relating to the taking of depositions under section 870 et seq. Mauthey v. Wyoming Co. Co-op. Fire Ins. Co., 76 App. Div. 579, 78 N. Y. Supp. 596. The two are independent proceedings, and cannot be united under one order. Bloodgood v. Slayback, 62 App. Div. 315, 71 N. Y. Supp. 809.
Motion granted, with $10 costs.
(41 Misc. Rep. 428.)
TOWN OF EAST FISHKILL V. TOWN OF WAPPINGER.
(Supreme Court, Trial Term, Dutchess County. October, 1903.) 1. BRIDGES-LIABILITY OF Towns-REPAIRS.
Laws 1890, p. 1201, c. 568, § 130, making towns jointly liable for the cost of repairing bridges over a stream forming the boundary line, applies when the boundary is a long one side of the stream as well as when it
runs through the middle thereof. Action by the town of East Fishkill against the town of Wappinger to recover one-half of the expense of repairing bridges over a boundary stream. Judgment for plaintiff.
The town of Fishkill in Dutchess county was divided in 1849 by an act of the board of supervisors, the new town of East Fishkill (the plaintiff) being created thereby. The line of division was east along Fishkill creek to its junction with Sprout creek, “then up and along the west bank of said Sprout creek to,” etc. The territory to the east of this line was constituted as the new town. Chapter 411, p. 701, Laws 1852. By still another division of the town of Fishkill (chapter 400, p. 476, Laws 1875) this territory along the west side of Sprout creek became of the town of Wappinger (the defendant).
Charles A. Hopkins, for plaintiff.
GAYNOR, J. If the words, "thence up and along the west bank of said Sprout creek,” established the line along the west bank instead of along the middle of Sprout creek, which is doubtful (Gouverneur v. National Ice Co., 134 N. Y. 355, 31 N. E. 865, 18 L. R. A. 695, 30 Am. St. Rep. 669), the creek lies wholly within the town of East Fishkill, the plaintiff. But even so, I think both towns are jointly liable for the repair of the bridges over it. The statute is that in case of bridges "over streams or other waters forming the boundary
and 118 New York State Reporter line of towns," such joint liability exists. Highway Law, § 130, chapter 568, P. 1201, Laws 1890. Though the line be along the west bank, it is formed by the creek as much as though it were along the middle. Whether the line touches and follows the water only along its edge, or is in the stream a foot, or to the middle, does not make a different case. The statute has to be interpreted liberally, for its intention is to make two towns share equally the expense of bridges which abut on each town for the use of both towns, and that is necessarily the case whether the town line be at the bank or in the middle.
Judgment for the plaintiff.
(41 Misc. Rep. 407.)
In re McMONAGLE. (Supreme Court, Special Term, St. Lawrence County. September, 1903.) 1. LIQUOR Tax CERTIFICATE-REVOCATION.
Revocation of a liquor tax certificate because the statements in the application for the certificate were false when made cannot be defeated by subsequently changing the condition of the place so as to make it
comply with the statute. 2. SAME-HOTEL.
The liquor tax law requires a hotel to contain at least six bedrooms with independent access by doors from hall, in addition to the rooms occupied by the family and servants; and where, in order to leave six rooms for guests, the family, after the application for a tax certificate, but before a sale of any liquors, vacated one of the bedrooms and lodged in a hall, into which five of the other bedrooms opened, the remaining bedroom being upon another floor, it is not a compliance with the law,
the use of the hallway making it practically a bedroom. 3. SAME-CONSENT-NEAREST ENTRANCE.
Liquor Tax Law, $ 17, subd. 8 (Laws 1897, p. 220, c. 312), requiring the consent of owners of a dwelling, the nearest entrance to which is within 200 feet of the nearest entrance to the premises described, in
cludes in the phrase "nearest entrance to the premises" all entrances. 4. SAME.
A rear entrance in a building, by which the barroom can be reached by walking 10 feet through a hall, is an entrance, within the meaning of Liquor Tax Law, $ 17, subd. 8; and, if within 200 feet of the nearest entrance to a dwelling, the building in which such entrance is, is not
entitled to a certificate. Petition by Anna McMonagle for an order revoking a liquor tax certificate to Naomi N. Wainwright. Revoked.
Kellogg & Mulligan, for petitioner.
JOHN M. KELLOGG, J. The petitioner seeks a revocation of the liquor tax certificate at the Riverside Hotel, at the village of Rensselaer Falls, upon the ground of false statements made by respondent in the application for said certificate. Her husband, the manager of the business, owned the premises, and they resided there, and were familiar with the property and its surroundings, had been hotel keepers for years and he had previously been convicted under the excise law for two offenses, and they each had knowledge of the situation, and were familiar with the excise law.
1. The dining room contained only 144 feet of floor space, instead
of 150, as shown by the statement. Nevertheless all guests at the house received reasonable accommodations at the table, and, when the dining room was full, guests were seated at the table in the sitting rooni-a room not connected with the other dining room or kitchen, except through the main hall. Another dining room is in process of erection, and the court would hesitate to revoke a certificate upon this matter, standing alone.
2. The hotel does not comply with the law with reference to the bedrooms, and the statements made by the respondent in that respect are false. When the application was made and a certificate granted, there were but six rooms in the hotel furnished as bedrooms, and one of these rooms did not have an independent access by a door opening into the hallway; but about a month after the certificate was granted the excise department called attention to this defect, and a door was cut from the hall into this room, and we need not consider that matter further. The family of the respondent consists of herself and husband, and they had one servant, and at times more. When the application for the certificate was made, June 18th, the respondent and her husband occupied one of the six bedrooms. The certificate was received June 19th, and the sale of liquor on the premises was not begun until June 22d. Upon June 22d the respondent and her husband slept in a bed which they had put up in the hallway of the hotel into which the five sleeping rooms in the second story opened, and since that time they have occupied such hallway as their bedroom; there being no partition or screen of any kind between the bed and the remainder of the hall. Ordinary bedroom furniture and their clothing are kept in that part of the hall. The servant, when there was but one, slept in the attic. At the time this proceeding was commenced a second servant was employed, and a lop was fitted up in the lower hall, from which the remaining bedroom opens; and she occupied that hall for a sleeping room for about a week, when the bedroom in the new addition to the hotel was arranged, and a bed for both the servants moved into it. We do not think this is a compliance within the statutory requirement that there shall be at least six bedrooms, exclusive of those occupied by the family and servants. The respondent has in fact made the hall
, into which the other bedrooms open, her bedroom. A guest arriving late, or departing early, or desiring to leave his room in the night, must pass through the sleeping room of the respondent and her husband to gain access to the hall below, or the street. And the evidence shows that guests passed through the hallway while the respondent was in bed, only screened from observation by the bedclothes. This arrangement does not constitute a hotel, as defined by the statute. When the statement was made and certificate granted there were but five bedrooms, aside from the one occupied by the respondent; and her removal into the hall into which these bedrooms opened does not cure the defect, but now presents a situation where, under section 28, subd. 2, of the liquor tax law (Laws 1897, p. 229, C. 312), “the holder of said certificate was not entitled to receive or hold the same.”
3. There were buildings used exclusively as residences, the nearest entrance to which were within 200 feet of the nearest entrance to
and 118 New York State Reporter the premises where the liquor was to be sold, and the statements in that respect were false. The Riverside Hotel, up to the granting of this certificate, was a residence—a frame building-all under one roof, and nearly square. A hall ran through the building from the front to the rear on the ground floor. There was a door opening into this hall from the street in front, and another from the hall at the back of the house. Along near the center of the hall was a stairway, and from this stairway to the back of the building the hall was narrowed up. On the easterly side of the hall and building the room in front was the sitting room, the next the dining room, and in the rear the kitchen. Upon the other side of the hall was the parlor (at first the barroom, and now the office), immediately back of it the bedroom (at first a bedroom, and now a barroom), and in the rear a storeroom (now a bedroom). Each of these rooms opened into the hall by a door. The distance from the front door to the front entrance to the residence of the petitioner was 190.95 feet. The distance from the back door to the front entrance to the residence of the petitioner was 180.4 feet. The distance from the back door to the front entrance of the residence of Mr. Redell was 191.5 feet. This situation remained the same until Monday, the 22d of June, when the respondent caused the front door to be closed up, a window put in its place, and a new entrance made into the barroom, which was in the northwesterly corner of the house, where had been the parlor; the new entrance being 205.3 feet from the McMonagle entrance. When the respondent swore to the statement before the attorney for the surety company which furnished her bond, he informed her that making the application before the front door was closed would not cause her any trouble, if such door actually was closed up before any liquor was sold. She received the liquor tax certificate on Saturday evening, June 20th, and Monday morning, June 22d, proceeded to close up the old entrance door, and no liquor was sold until after it was closed. After the old main entrance was closed, the only entrance to the hotel was by the new entrance, through the barroom, or by the back door referred to. After being there a month, the bar was put in a room back of the first barroom, and a new door cut into it, the old barroom being used as an office, so that then the entrances to the hotel were the new entrance leading into the office, the new entrance leading into the barroom, and the back entrance leading into the back hall. Between the barroom and the rear outside wall of the building was a small bedroom, about 8xio feet, and by entering the back hall from the rear door a person is within 8 or 10 feet of the barroom, and has only to open a door to enter it. It does not appear that the new addition to the hotel remedies the defect as to this side entrance in any way, or leaves this entrance outside of the prohibited distance from these dwellings. It must therefore be assumed that the situation as to it remains the same as when the application was made, and that it is not being changed.
Subdivision 8 of section 17 of the Liquor Tax Law requires the consent of owners of a dwelling, the "nearest entrance" of which is within 200 feet, measured in a straight line, of the "nearest entrance * * * to the premises described in said statement as those in
which traffic in liquor is to be carried on." Subdivision 3 of the same section requires to be stated "the premises where such business is to be carried on, stating the street and number if the premises have a street and number, and otherwise such apt description as will reasonably indicate the locality thereof, and also the specific location on the premises of the bar or place at which liquors are to be sold.” The statement signed by the respondent to the county treasurer describes “the premises where the business is to be carried on” as "the Riverside Hotel"; the specific location of the "bar on said premises" as the front room on the first floor, northwest side or end of the building; and the thirteenth question in said statement is, “How many buildings are there occupied exclusively as dwellings, the nearest entrance to which is within 200 feet, measured in a straight line, of the nearest entrance to the premises where the traffic in liquors is intended to be carried on?” to which question the respondent answered, “None.” The words of the statute and of the statement show clearly that "the premises" referred to is the hotel, and not the "bar," or particular room in which the bar is placed. "The premises" mentioned in subdivisions 3 and 8 and the statement are the same "premises." Numerous decisions define what the meaning of “the nearest entrance to the dwelling" is, as including all entrances—front, side, or rear. Matter of Saunderson, 34 Misc. Rep. 375, 69 N. Y. Supp. 928; Matter of Veeder, 31 Misc. Rep. 569, 65 N. Y. Supp. 517; Matter of Cheney, 35 Misc. Rep. 598, 72 N. Y. Supp. 134. And by the same course of reasoning the "entrance to the place where the liquor is to be sold" must mean any entrance—front, side, or rear. By the use of the word "nearest" entrance the statute clearly contemplates that there may be more than one entrance. It is not probable that there would ordinarily be more than one front entrance. Any one desiring to visit this bar otherwise than by the front door can enter the rear door into the back hall, and then by a door enter the barroom. This back door is a prohibited entrance, and is within 8 or 10 feet of the barroom. The erection of the new addition, it is probable, does not change the situation in the rear of the building, for, should it be between the rear door and the residences in question, it would have no effect, as the measurements are to be made in a straight line, disregarding all other obstructions. Matter of Ruland, 21 Misc. Rep. 504, 47 N. Y. Supp. 561; Matter of Bridge, 36 App. Div. 533, 55 N. Y. Supp. 54.
We therefore hold that the premises referred to in the statement and statute, and as to which the measurements are to be made, is the Riverside Hotel, and that this rear door in the wall of the building, giving access from the outside to the building, and within 10 feet of the barroom, is an entrance, within the meaning of the statute. At the time the application was made and the liquor tax certificate granted, the entrances were the front and rear door, both of which were within the prohibited distance. At the time of the hearing in this matter, the rear door was still an entrance to the premises, and was within the prohibited distance of both of those residences.
The cases hold that where the statement is false when made, and where the facts existing at the time of the statement do not justify the granting of a