said defendant failed to appear and answer said charge, pursuant to the condition of said undertaking, and an order and certificate was made by said magistrate that said undertaking be forfeited; and thereupon the district attorney of Kings county on December 2, 1911, filed in the office of said county clerk said undertaking and certificate of forfeiture, with a request in writing to the said county clerk to docket, in the name of the people of the state of New York against said principal and surety as defendants, judgment against said principal and surety for the sum of $500, in accordance with the provisions of said section 595 of the Code of Criminal Procedure, and said judgment was so entered and docketed.

Section 686 of the Greater New York charter provides as follows:

"Any person convicted of any of the offenses herein before recited shall, upon being served with such order, enter into a bond to the people of the state in such sum as such city magistrate shall direct, with good and sufficient surety to be approved by the said city magistrate, that such person shall pay weekly for the space of one year such sum for the support of his wife and children or either or any of them as has been ordered as aforesaid, to the commissioner of public charities."

Section 687 of said charter, as amended by chapter 357 of the Laws of 1908, provides as follows:

"If the person charged with the offenses hereinbefore recited or either of them is admitted to bail, the undertaking of his bail shall be for the future appearance of the defendant according to the terms of the undertaking, or that the bail will pay to the commissioner a specified sum in the event of such failure to appear or if such person deposits a sum of money as directed by law instead of giving an undertaking of bail for his future appearance, and if such person shall thereafter fail to appear in accordance with the terms of said undertaking or the terms upon which the money was deposited, then the said magistrate shall enter the fact of said person's nonappearance upon the minutes and the undertaking of his bail or money deposited instead of bail shall thereupon be forfeited."

It is then provided by section 688 that:

“When such a bail bond or undertaking is forfeited, an action may be brought in the name of the commissioner of public charities to recover the amount specified in such bail bond or undertaking in which the measure of damages shall be the full amount mentioned in said undertaking and the amount recovered in said action shall be applied and expended for the support of the wife and children, or either or any of them, of the person charged with the offenses herein before recited or either or any of such offenses."

[1] It will thus be seen that the commissioner of charities, as obligee in the undertaking in question, has the right to recover thereon by action brought and prosecuted by and in his name.

The district attorney asks that the judgment entered herein in favor of the people of the state of New York be amended by substituting the name of the commissioner of charities in place of the name of the people.

[3] The court has no power to amend a judgment by substituting an entirely different party. The obligee in the undertaking is the commissioner of charities of the city of New York.

[2] The judgment entered thereon in favor of the people of the state of New York is contrary to the express terms of said under

taking. The judgment entered herein is not merely irregular, but absolutely void. It follows, therefore, that the said judgment must be vacated and set aside.

Motion granted.

(75 Misc. Rep. 163.)

PEOPLE ex rel. HIGGINS v. HEGEMAN, County Treasurer.

(Nassau County Court. January, 1912.)

1. INTOXICATING LIQUORS (§ 69*)—LIQUOR TAX CERTIFICate-Ground for ReFUSAL "HOTEL."

On an application for a liquor tax certificate, the fact that the building where the business was to be conducted had only five bedrooms instead of six, that one of these was materially deficient in floor area and air space, that four had no independent access by a door leading into a hallway, and that the premises failed in other respects to comply structurally with Liquor Tax Law (Laws 1910, c. 494) § 30, cl. N, defining a "hotel," was ground for refusing the certificate.

[Ed. Note. For other cases, see Intoxicating Liquors, Cent. Dig. §§ 70, 73; Dec. Dig. § 69.*

For other definitions, see Words and Phrases, vol. 4, pp. 3349, 3350; vol. 8, p. 7680.]

2. INTOXICATING LIQUORS (§ 69*)-LIQUOR TAX CERTIFICATE CHARACTER OF PREMISES-TIME OF DETERMINATION.

Whether a building in which liquor business is to be carried on complies with the law as to structural requirements for use as a hotel must be determined as of the time when application for a liquor tax certificate is made.

[Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. §§ 70, 73; Dec. Dig. § 69.*]

3. INTOXICATING LIQUORS (§ 46%1⁄2*)—LIQUOR TAX CERTIFICATE—NUMBER IS

SUED.

Under the express provisions of Liquor Tax Law (Laws 1910, c. 494) § 8, subd. 9, no liquor tax certificate may be issued under subdivision 1 of the section for premises in any town, village, borough, or city, unless the ratio of population to the number of certificates issued is greater than 750 to 1.

[Ed. Note.-For other cases, see Intoxicating Liquors, Dec. Dig. § 462.*]

4. INTOXICATING LIQUORS (§ 104*)-LIQUOR TAX CERTIFICATE—ABANDONMENT OF PREMISES.

Under Liquor Tax Law (Laws 1910, c. 494) § 8, subd. 9, providing that in any case, except that of a hotel, where the filing of notice of abandonment of premises for others is not followed within 60 days by the commencement of traffic on the new premises, the notice shall be void, where either the old or new place is a hotel, it is not necessary that the traffic be carried on within 60 days on the new premises.

[Ed. Note. For other cases, see Intoxicating Liquors, Cent. Dig. § 109; Dec. Dig. § 104.*]

5. INTOXICATING LIQUORS (§ 64*)-LIQUOR TAX CERTIFICATES-APPLICATION. Where the place for carrying on liquor traffic is to be used as a hotel, the application for a liquor tax certificate must so state.

[Ed. Note. For other cases, see Intoxicating Liquors, Cent. Dig. § 64; Dec. Dig. § 64.*]

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

& INTOXICATING LIQUORS (§ 104*)-LIQUOR TAX CERTIFICATE CHANGE OF LO

CATION.

Where a corporation after notice of abandonment and transfer to new premises in good faith opened up the new premises, equipped for business, to the public, immediately, though no sales of liquor were made for over six months, its tax certificate did not become void.

[Ed. Note. For other cases, see Intoxicating Liquors, Cent. Dig. § 109; Dec. Dig. 104.*]

7. INTOXICATING LIQUORS (§ 104*)—LIQUOR TAX CERTIFICATE—ABANDONMENT OF PREMISES-CONSENT OF Owner.

Where the last application for a liquor tax certificate for particular premises did not describe the premises as a hotel, the consent of the owner to the abandonment of the premises was not necessary.

[Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. § 109; Dec. Dig. § 104.*]

Proceeding by the People, on the relation of John Higgins, for certiorari to review the refusal of Daniel J. Hegeman, County Treasurer of Nassau County, to issue to relator a liquor tax certificate. Writ quashed.

James L. Dowsey, for relator.

Ira A. Rosenson, for county treasurer.

Herbert H. Kellogg, for Thorne Manor Co.

NIEMANN, J. This is a proceeding to review the action of the County treasurer of Nassau county in refusing to issue to relator, John Higgins, a liquor tax certificate for traffic in liquors on premises on the northeast corner of Beach road and Maple street, Great Neck, town of North Hempstead, Nassau county, N. Y., of which he is the owner in fee simple.

The facts are substantially as follows:

On June 2, 1908, one Edward F. Higgins filed an application for a liquor tax certificate under subdivision 1 of section 8 (Consol. Laws 1999, c. 34), which was then section 11 of the Liquor Tax Law (Laws 1896, c. 112), for traffic in liquors at the above-described premises; and, in answer to question 6 of the said application, "What other business is to be carried on in connection therewith, or on the same premises, by the applicant, or any other person?" the said applicant answered, "No," and in answer to question 20 in said application, "Does the applicant intend to carry on a hotel on such premises?" said applicant answered, "No." A liquor tax certificate was issued to said applicant on June 2, 1908, which expired on September 30, 1908. On September 17, 1908, one John I. Le Blanc filed an application for a liquor tax certificate under said section and subdivision, for traffic in liquors at said premises, and in answer to question 6 of said application, "What other business is to be carried on in connection therewith, or on the same premises, by the applicant or any other perSon?" stated "Hotel." And in answer to question 20 of said application, "Does the applicant intend to carry on a hotel on said premises?" said applicant answered, "Yes." And in answer to question 22 of said application, "Since what date have said premises been continuously occupied as a hotel?" said applicant answered, "Just comFor other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

mencing." A liquor tax certificate was thereupon issued, on September 28, 1908, to said applicant, which expired on September 30, 1909. On September 24, 1909, said John I. Le Blanc filed an application for a liquor tax certificate for traffic in liquors at the above-described premises under the said section and subdivision and in said application, in answer to question 6, "What other business is to be carried on in connection therewith or on the same premises, by the applicant or any other person?" said applicant answered, "Hotel." And in answer to question 20, "Does the applicant intend to carry on a hotel on such premises?" the applicant answered, "Yes." And in answer to question 22, "Since what date have said premises been continuously occupied as a hotel?" said applicant answered, "June 1, 1908." A liquor tax certificate was thereupon issued, September 24, 1909, to said Le Blanc, which expired September 30, 1910.

On October 3, 1910, said John I. Le Blanc filed his application for a liquor tax certificate under the said section and subdivision for traffic in liquors at the above premises, and, in answer to question 6 of said application, "What other business is to be carried on in connection therewith, or on the same premises, by the applicant or any other person?" said applicant answered, "None." And in answer to question 20, "Does the applicant intend to carry on a hotel on said premises?" said applicant answered, "No." And in answer to question 22 of said application, "Since what date have said premises been continuously occupied as a hotel?" said applicant answered, "Not a hotel." A liquor tax certificate was thereupon issued October 3, 1910, to said applicant, for traffic in liquors at the above-described premises, which certificate expired on September 30, 1911.

On December 29, 1910, said certificate holder, John I. Le Blanc, filed with the county treasurer of Nassau county a notice of abandonment, abandoning traffic in liquors from the above premises at the northeast corner of Beach road and Maple street, to premises on the south side of Cedar drive, about 1,200 feet west of Bay View avenue, · Great Neck, in said town and county. On said 29th day of December, 1910, the said John I. Le Blanc also filed a petition to change the place of traffic in liquors from the said premises, northeast corner of Beach road and Maple street, to the said premises on the south side of Cedar drive. On the same date said John I. Le Blanc filed his application in writing with said county treasurer for a liquor tax certificate under said section and subdivision, for traffic in liquors at the said premises situate on the south side of Cedar drive; and, in answer to question 6, "What other business is to be carried on in connection therewith, or on the same premises, by the applicant or any other person?" the said applicant answered, "Hotel." And, in answer to question 20, “Does the applicant intend to carry on a hotel on such premises?" said applicant answered, "Yes." The said application being accompanied by the necessary bond and consents, traffic in liquors under said certificate was transferred from the said premises, northeast corner of Beach road and Maple street, to the said premises on the south side of Cedar drive. On said 29th day of December, 1910, the said John I. Le Blanc also filed with said county treasurer a petition to transfer said certificate to the Thorne Manor Company, for traffic in liquors

at said premises on the south side of Cedar drive. On the same day the said Thorne Manor Company filed with said county treasurer its application for a liquor tax certificate under said section and subdivision, for traffic in liquors at the said premises south side of Cedar drive; and, in answer to question 6 of the application, "What other business is to be carried on in connection therewith, or on the same premises, by the applicant or any other person?" said applicant answered, "Hotel." And in answer to question 20 of said application, "Does the applicant intend to carry on a hotel on such premises?" the applicant answered, "Yes." And in answer to question 22 of said application, "Since what date have said premises been continuously occupied as a hotel?" applicant answered, "December 27, 1910."

It was admitted upon the hearing that the ratio of population of the said town of North Hempstead, according to the census report of 1910, was 17,831, and that the number of certificates issued for this township under subdivision 1, section 8, of the Liquor Tax Law was 103, and that the ratio of population on the 1st day of October, 1911, was less than 750 for each certificate.

The order allowing the writ of certiorari to issue was granted on September 15, 1911, and the matter remained in abeyance for about two months, when the Thorne Manor Company, the owner and holder of the certificate at the new premises, south side of Cedar drive, discovered the pendency of this action and made a motion, on November 11, 1911, before the county judge of Nassau county, to be allowed to intervene as a respondent in the proceeding; and, inasmuch as the decision of the court in this proceeding would vitally affect the certificate which said Thorne Manor Company now holds for the lastmentioned premises, the motion was, upon consent of all the parties, granted on the said last-mentioned day, allowing the said Thorne Manor Company to intervene and making said company a party to this proceeding.

The said Thorne Manor Company did not file any separate return to the petition, but produced testimony on the trial in support of the return of the county treasurer, and the issue to be determined is that raised by the petition and said return.

The county treasurer, as appears by his return, refused to issue a liquor tax certificate to the relator upon two grounds: (1) That the relator's said premises did not comply with the structural requirements of a hotel as prescribed by section 30, clause N, of the Liquor Tax Law (Laws 1910, c. 494); (2) that traffic in liquors having been abandoned at the premises northeast corner Beach road and Maple street, to premises on the south side of Cedar drive, no liquor tax certificate for traffic in liquors under subdivision 1 of section 8 of the Liquor Tax Law could thereafter be issued for said premises located on the northeast corner of Beach road and Maple street, because the issuance of such liquor tax certificate is prohibited by the provisions of subdivision 9 of said section 8 of the Liquor Tax Law, as the ratio of population in said town is not greater than 750 to each certificate.