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Farley v. Scherno

Supreme Court of New York, Appellate Division

November 15, 1911

WILLIAM W. FARLEY, as State Commissioner of Excise of the State of New York, Respondent,
v.
ANTONIO SCHERNO and the FIDELITY AND CASUALTY COMPANY OF NEW YORK, Appellants.

APPEAL by the defendants, Antonio Scherno and another, from a judgment of the Supreme Court in favor of the plaintiff,

Page 376

entered in the office of the clerk of the county of Clinton on the 1st day of March, 1911, upon the decision of the court rendered after a trial at the Clinton Trial Term, a jury having been waived.

COUNSEL

John E. Judge and Lucius A. Waldo, for the appellants.

A. M. Sperry, for the respondent.

HOUGHTON, J.:

The action is to recover the penalty prescribed by a bond given upon the issuing of a liquor tax certificate on the ground that the certificate holder allowed the premises to become disorderly.

An amendment of plaintiff's complaint was made upon the trial, to which the defendants did not object and in which they acquiesced, and with this amendment incorporated the complaint alleged that the defendant Scherno filed with the county treasurer of Clinton county an application for the purpose of obtaining a liquor tax certificate, in which he stated that he desired to traffic in liquors at No. 8 United States avenue, in the city of Plattsburgh, on premises known as Scherno's Hotel, owned by his wife, and that with such application he presented the usual bond, executed by the defendant, the Fidelity and Casualty Company of New York, conditioned that he would not violate any of the provisions of the Liquor Tax Law, and that there was no material false statement in the application for such liquor tax certificate. It was further alleged that he violated the conditions of the bond by permitting the premises to become disorderly, lewd and obscene, and maintained a disorderly house and public resort for lewd women, and that the statement that the premises belonged to his wife was false.

The defendants answered, admitting the giving of the bond, denying that the premises had become disorderly, and alleging that the premises for which the liquor tax certificate was granted belonged in fee, not to the wife of Scherno, but to the United States of America, and was occupied as a military reservation and post known as the 'Plattsburgh Barracks.'

On the hearing before the court, for the purpose of the trial, the defendant admitted that he maintained a disorderly house

Page 377

as alleged in the complaint. Thereupon the plaintiff moved for judgment on the pleadings and admissions, which motion was granted.

The defendants now insist that the bond which they gave was a nullity because the State Excise Commissioner through the county treasurer of Clinton county had no right to grant a liquor tax certificate to Scherno to sell intoxicating liquors upon premises belonging to the United States, and not having the right to grant any such certificate the bond which was given in consideration of its issuance was void and of no effect.

We are of opinion this contention is unsound. The State of New York gave its consent to the purchase by the United States of land not exceeding one thousand acres which afterwards became known as the Plattsburgh Barracks, and ceded jurisdiction thereof to the Federal government as long as it should continue to own such land, reserving only the right to serve civil and criminal process, by chapter 18 of the Laws of 1890. It was a crime by the law of the State of New York (Laws of 1857, chap. 628, § 13; Id. § 16, as ...


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