be exceptions, that this vested privilege and right, annexed by statute to premises used for trafficking in liquor on the 23d day of March, 1896, should and may be continued within the true intent and spirit of the law until the owner forfeits the right by devoting or consenting or acquiescing in the devotion of the premises to another use, or by some act manifests an intention to suspend or abandon their use for the purpose of trafficking in liquor.

I cannot agree with the holding by implication contained in Justice MCLENNAN'S opinion that the tenant, by surrendering the certificate, may deprive the landlord of this right, unless there was an express agreement that trafficking in liquor should not be suspended. I think renting premises for such traffic is sufficient to preserve the right, provided the landlord, upon learning of a suspension of the traffic by the tenant, exercises due diligence in resuming possession and continuing the right. In the case at bar the premises have not been devoted to any other use, and their only occupancy has been for continuing the traffic in liquors. The owners have done no act indicating an intention to abandon or suspend that business. On the contrary, it affirmatively appears that they have at all times intended to exercise the privilege, and they have used reasonable diligence in protecting their interests and preserving this right. I therefore vote for reversal.

SPRING, J. (dissenting). The salient facts in this proceeding are uncontroverted. John C. Hathaway owned the premises in question on March 23, 1896, when the liquor tax law became operative, and they then contained a saloon in which the traffic of liquor was carried on. On April 29, 1899, Mary A. Knights, who was then the occupant of this saloon, obtained a certificate from the county treasurer authorizing her to continue the traffic, which she did without interruption until January 27, 1900, when she voluntarily surrendered the certificate to obtain the rebate, as it was by its terms effective until the 1st of May following. Hathaway sold the premises to Slattery and Hammond by deed dated January 6, but delivered January 17, 1900. They expected undoubtedly to use them for a saloon for the sale of liquor. The purchasers informed Mrs. Knights of their purchase, and permitted her to continue her occupancy until March 1st, which she did. Her tenancy under Hathaway was by a verbal lease, and she paid rent monthly in advance, and for the month of February she attorned to the new owners. There was no agreement by which her certificate was to be assigned to them. From January 27th until March 1st during her occupancy of said premises, after the surrender of said certificate, the traffic in liquor was not carried on at all therein. On February 7, 1900, Slattery and Hammond applied to the county treasurer of said county for a certificate authorizing them to sell liquor in said premises. In their verified application filed for that purpose in response to the question, "Since what date have said premises been occupied continuously for such traffic in liquor?" they answered, "Since 1894 to January 29, 1900." The application was refused on the ground that said premises had not been "continuously occupied for such traffic" to the date of the application. On February 17th another application was presented by these owners, in which they answered

and 100 New York State Reporter

the same inquiry as to the continuous sale of liquor by saying, "Prior to May 23, 1896," eliminating the portion implying that the traffic in liquor had ceased January 29, 1900. Upon this application a certificate was issued to them permitting them to traffic in liquor in said premises until April 30th following. No consent of the owners of adjacent dwellings was filed with said treasurer accompanying said petition. The nearest entrance to said premises is "within two hundred feet, measured in a straight line, of the nearest entrance" to the buildings of the petitioners, each of which is "occupied exclusively for a dwelling." They commenced this proceeding to secure the revocation and cancellation of said certificate on the ground that said premises had not been occupied continuously for the traffic in liquor, and that the statement to the contrary in said application is false.

Subdivision 8 of section 17 of the liquor tax law (chapter 112, Laws 1896, and its various amendments) requires the consent in writing that the traffic in liquor be carried on in the premises executed by the owner or owners of at least two-thirds of the buildings exclusively occupied for dwellings and situated within 200 feet of said premises. If the liquor traffic was carried on in the premises March 23, 1896, such consent was unnecessary at that time, and shall not "be required so long as such premises shall be continuously occupied for such traffic." That is, although the occupant had a clear right to prosecute his business after March 23, 1896, and as long as he did so continuously, without obtaining the consent of these near-by owners, if he discontinued the traffic or abandoned the business, its resumption must be preceded by their consent executed and filed in compliance with the statute. People v. Hamilton, 25 App. Div. 428, 49 N. Y. Supp. 605; In re Klevesahl, 30 Misc. Rep. 361, 63 N. Y. Supp. 741; In re Bridge, 36 App. Div. 533, 55 N. Y. Supp. 54. The length of time of such abandonment is unimportant. People v. Lammerts, 18 Misc. Rep. 343, 40 N. Y. Supp. 1107, affirmed 14 App. Div. 628, 43 N. Y. Supp. 1161, without an opinion. The abandonment itself operates as a forfeiture. In re Lyman, 34 App. Div. 389, 54 N. Y. Supp. 294. In People v. Lammerts, 18 Misc. Rep. 343, 40 N. Y. Supp. 1107, the premises were occupied by a tenant engaged in the traffic in liquor when the liquor tax law went into effect. He ceased the traffic April 2d, but resumed it, continuing until June 11th, when he abandoned both the business and the premises. On the succeeding day Sweeney leased the premises of the owner for the purpose of conducting the liquor traffic, and at once began fitting it up with that view. On the 15th of that month the former tenant applied to the treasurer for permission to assign his certificate to Sweeney, which was refused, as the consent of the requisite number of owners within 200 feet had not been filed. On the 30th of June the occupant made application for a certificate, which was again refused, and proceedings were instituted to review the determination of the treasurer. That official was sustained at special term, the judge saying in his opinion, at page 348, 13 Misc. Rep., and at page 1111, 40 N. Y. Supp.:

"I am constrained to hold, therefore, that, as the business of trafficking in liquors was not continued after the 11th day of June, there was an abandonment of the premises for that purpose, and before the liquor business can

again be carried on in these premises the party applying for a tax certificate must comply with the provisions of the act by procuring the consent of twothirds of the owners of buildings occupied exclusively for dwellings, as provided by subdivision 8 of section 17."

In the present case Mrs. Knights was the only person authorized to carry on this traffic January 27, 1900. She was in possession of the premises. The rent had been paid in advance, and certainly her tenancy could not be terminated until the 1st of the following month, if even then. She owned the certificate, and that furnished the only permission to traffic in liquors. It was her property, and it had a money value, and she surrendered it to obtain the rebate. No other certificate was issued until February 17th, and certainly during that interim no one could lawfully carry on the traffic in the premises. There is no claim any liquor was sold from the abandonment until the termination of her tenancy on the 1st of March following. There were, therefore, both the legal disqualification arising from the lack of the certificate and the actual abandonment of the traffic. During that period no one else was in possession, and, as long as she was the occupant and the holder of the certificate, if she abandoned the traffic, that suspended the business, so that its resumption must be based upon the written consent required by the liquor tax law. There is no pretense that Mrs. Knights ever agreed to transfer the certificate to these owners. It was personal property, and assignable (Niles v. Nathusa, 162 N. Y. 546, 57 N. E. 184), and they could have protected themselves by an agreement with her to transfer it to them by complying with section 27 of the liquor tax law. In re Kessler, decided by the court of appeals June 5th of the present year, 57 N. E. 402, is in harmony with this position, instead of adverse to it. In that case Cashin was in the occupancy of premises which had been continuously used for the traffic in liquor since the adoption of the liquor tax law. On the 19th of February, 1899, a part of the saloon was destroyed by fire, resulting in a forced suspension of the business. There was no surrender of the certificate, and repairs were commenced immediately, but were not completed for three months. During that time the traffic could not be carried on. As is said by Judge O'Brien, of the court of appeals, in his opinion:

"The suspension was due entirely to the fact that the place had been wholly or partially destroyed, since there was no intention to abandon the business, but, on the contrary, to resume it as soon as the building was in proper condition for that purpose; and it was actually resumed by Cashin, under the certificate in question, as soon as the place was put in a suitable condition for business. ** * In order to deprive the place of the privilege conferred by the statute, it must appear that there was a real and substantial abandonment of the business by the occupant."

In that case there was no voluntary abandonment by the occupant and no intention to suspend his business. In the present case the only person who had any title to the certificate, and who was the sole and lawful occupant of the premises, exercised her legal privilege in surrendering her certificate, and abandoning the business. The statute is very plain that, if the new occupants desired to revive the business after this voluntary discontinuance of it, they must procure the consent required by the statute. The first certificate had spent its force

and 100 New York State Reporter by action of its owner. Their right to engage in the traffic of liquor depended upon a new certificate, and no liquor was sold in the meantime. Had Mrs. Knights actually agreed to continue the traffic in liquor until March 1st, and then assign the certificate to these owners, they would have been, in a measure, at her mercy. If the certificate had been canceled for her misconduct while held by her as their tenant, that would have operated to discontinue the traffic. Though the lessors were ignorant of her violation, the effect of a decision annulling the certificate therefor would reach them, requiring them, when they obtained a new certificate, to file the consent pursuant to the statute. As is said in Re Michell, 41 App. Div. 271, 273, 58 N. Y. Supp. 634, in commenting upon a similar provision: "He had placed it in the power of the assignee of the certificate to take it away, and, if the assignee exercised that power, he must bear the consequences." The import of the prevailing opinion is that a secret agreement between the landlord and his tenant, whereby the tenant agrees to continue the traffic of liquor, inures to the benefit of the former, so that he is relieved from filing the consent of adjacent owners of dwellings with his new application, even though the occupant has absolutely ceased the traffic, and surrendered the certificate issued to him. That is, a tenant who occupies a saloon under a tenancy of five years must surrender his certificate and discontinue the traffic in liquors, and does not engage in it for the balance of his term; but because, forsooth, he has violated his private agreement with his landlord, the public and adjacent owners must suffer for the breach, and not the lessor. In the meantime new dwellings may have been erected within the prohibited district by. owners unaware of this private agreement, and upon the supposition that the consent of two-thirds of the owners must be obtained before liquor can be sold in the premises; and yet all to no purpose, for the tenant has discontinued the traffic in violation of his verbal contract with his lessor. I find no warrant in this law for that construction which gives this extraordinary relief to the owner from the burden cast upon him by the statute because he may have been deceived by his tenant.

An analysis of the facts in this proceeding shows that these owners did not place the slightest reliance upon Mrs. Knight's certificate, or her continuance of the liquor business. They acquired title to the premises January 17th, without making any arrangement with her to surrender possession, or to carry on the traffic. They claim that five days after their purchase they advised her of their ownership, and that she desired to continue in possession until March 1st, and that they complied with her request. She did not agree to retain her title, nor did she in terms agree to carry on the liquor traffic. She surrendered her certificate for cancellation January 27th, before the owners could have obtained possession, for her tenancy under Hathaway was in full life. On February 7th the purchasers applied for a liquor tax certificate. That was an entirely independent application, in no way recognizing any right in Mrs. Knights existing at that time. They stated in their petition that the occupation of said premises for traffic in liquor had terminated January 29th. They also stated that

consents of dwelling owners were unnecessary, because they had been filed upon Mrs. Knights' application in May, 1899. They were proceeding upon the assumption that these consents ran along indefinitely. This is further evidenced by the affidavit of Slattery, which states that these consents "were all perpetual in character." They were not paying any attention to the occupancy of Mrs. Knights, or the continuance of the traffic by her, but were acting upon the belief they could rest upon the consents filed with her petition. Again, they sought that their privilege to sell be of the date of February 1st. If they could depend upon Mrs. Knights' possession, their certificate need not be operative until March 1st. They did not seek even to have it commence from the date of the surrender of her certificate, though the fact of surrender and its date were known to them. While I find no authority in the statute for postdating a certificate, yet, to be consistent, and make an apparent continuous traffic, we would expect the period of surrender of one certificate and the rights under the new to be simultaneous if these owners were placing any reliance upon her certificate. She not only surrendered her certificate, but discontinued the traffic, and as Underhill, her saloon keeper, says, "on January 29, 1900, removed all her unsold stock of liquors and cigars therefrom, and permanently closed up said premises and business," and that said. premises, "or any part thereof," were not occupied "for traffic in liquor, or for any other business enterprise," and that said saloon "has been closed ever since January 27, 1900"; and these facts are corroborated by the petition of the relators. The discontinuance of the traffic on January 27th was found as a fact by the judge at special term, and is recited in the order revoking the certificate issued to the defendants. I find nothing in the papers to support the charge either that the surrender of the certificate or that the discontinuance of the traffic was done secretly, although of no importance.

In brief, the case presents this condition of affairs: Mrs. Knights, on January 27th, was the sole owner of this certificate. No one else had any interest in it whatever. She was in possession, not under the defendants, but by virtue of her tenancy from Hathaway. On that day she voluntarily surrendered the certificate to obtain the rebate to which she alone was entitled, and which she later received. She continued in the occupancy of the premises until March 1st, but during that entire period no liquor was sold in the premises, and no one had any right to engage in that traffic therein. The defendants, under their new light, claim there was no discontinuance, because they understood she was to continue selling liquor. If the effect of the surrender of the certificate and the actual discontinuance of the traffic are to be dependent upon a secret agreement between the occupant and her landlord, then the execution of the law is precarious and uncertain, and it is materially shorn of its efficiency. The certificate is what the statute deals with, not the verbal understanding of the parties. The construction given in the prevailing opinions ignores the occupant and his certificate, and makes the intention of the owner, who has no right in the certificate, the determining factor. It is contended that some liquor and the fixtures were in the saloon