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People ex rel. Lance v. O'Reilly

Supreme Court of New York, Appellate Division

December 30, 1908

PEOPLE EX REL. LANCE
v.
O'REILLY, CITY MAGISTRATE, ET AL.

[114 N.Y.S. 259] James E. Finegan, for appellant.

Peter P. Smith (John F. Clarke, Dist. Atty., on the brief), for respondents.

Argued before WOODWARD, JENKS, HOOKER, RICH, and MILLER, JJ.

HOOKER, J.

Upon this appeal by the relator from an order dismissing the writ of certiorari and remanding him, our attention is directed to the testimony taken before the magistrate upon the examination of this relator, who was brought before him charged with a violation of section 31 of the liquor tax law (Laws 1896, p. 73, c. 112). The propriety of the remedy is not questioned. Before the magistrate two police officers were called as witnesses, who described their entry on Sunday into a room in the rear of the barroom upon the premises, for which a liquor tax certificate had been issued in the name of one O'Cura, and who said they sat down at a table and each asked for a glass of beer, which was served by the defendant.

These questions and answers were a part of the examination:

" Q. Are you familiar with the taste of lager beer? A. Yes, sir.
" Q. Then you have drunk it before? A. Yes, sir.
" Q. You swear this was lager beer you were served with? A. I do."

And on cross-examination:

" Q. You would not want to put yourself up as an expert on liquor, would you, Officer O'Hara? A. No more than I have drunk lager beer before.
" Q. You asked for lager beer, and you have been served? A. Have been served with it, and to my common knowledge it was lager beer.
" Q. That is, it was in your opinion it was lager beer which was offered you? A. I know it was lager beer.

[114 N.Y.S. 260] " Q. You don't know whether this was fermented or malted liquor, you don't know whether this particular glass of liquor was, do you? A. To the best of my common knowledge lager beer is fermented. ***

" Q. You would not swear of your own positive knowledge that this particular liquid that was served to you was fermented or malted, would you? A. To the best of my knowledge it was. I don't. ***

" Q. You are not expert of liquors, are you, Officer O'Hara, are you? A. No; I am not an expert."

Section 31 of the liquor tax law (Laws 1896, p. 73, c. 112), amended by Laws 1897, p. 233, c. 312, § 22, and Laws 1903, p. 1129, c. 486, § 13, provides inter alia:

" It shall not be lawful for any corporation, association, copartnership or person, whether having paid such tax or not, to sell, offer or expose for sale, or ...

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