#### Matter of the Petition of Henry H. Lyman, as State Commissioner of Excise, for an Order Revoking and Cancelling Liquor Tax Certificate Issued to Mae A. Baldwin.

(Supreme Court, Onondaga Special Term,

March, 1899.)

Liquor Tax Law — Consents — *“*Dwelling ” defined.

A building is used exclusively as a dwelling, 'within the meaning of the Liquor Tax Law (Laws of 1896, chap. 112) as applicable to the consents of owners, where it as a whole is, in its general and preponderating use, designed for and devoted to occupation as a dwelling, and to the exclusion of any distinct portion thereof being openly and habitually devoted to some other purpose, as that of business.

*Semble,*that a building is used exclusively as a dwelling, within the meaning of the statute, where it was built after a business block to which it forms an addition, where it does not communicate with the rest of the block, has a separate street number and is used exclusively as a flat for dwelling purposes.

This application is made to revoke defendant’s license upon the ground that her application contained false statements in reference to the number of buildings used as dwellings within the prescribed distance of her saloon and that consents of a sufficient number of owners of dwellings Were not obtained:

The defendant stated that there were three buildings used for dwellings within the distance named by the statute and filed the consents for two thereof. It is now claimed by the petitioner that there was a fourth building used as a dwelling which should have been counted in obtaining consents. The defendant demies that this building was exclusively used as a dwelling, and also claims that one of the three buildings mentioned in her petition as being used for dwelling purposes was not as a matter of fact so used, and therefore should not he counted upon this question, and that if not so counted she had sufficient consents even though the one claimed by petitioner is taken into account.

S. B. Mead, for petitioner.

Edgcomb *&*Rafferty, for defendant

*569Hiscock, J.

The building which it is claimed by petitioner

should be counted as being used exclusively for a dwelling is and at the time of defendant’s application for a certificate was occupied by one Mrs. Pearl, who lived there with her nephew. It was a one-story brick house with a basement. The upper floor consisted of a front room occupied as a sitting-room with a bedroom and clothes-press off from the main room, and a kitchen with a bedroom off. The basement was entered either from the upper story or from the street, and was ordinarily used by her for the storage of fuel. There seems to have been stored there also for the accommodation of some neighbor an old stove and possibly some other things. Mrs. Pearl was a washerwoman and she was accustomed to take in family washing, which was done in the kitchen, there being sometimes three or four or five washings a week. This was done without machinery of any kind, such as would be found in a public laundry. There was no business sign of any kind upon the house, which in its appearance and aspect, so far as the evidence disclosed, was an ordinary dwelling-house, used for dwelling purposes.

I do not think that this use by the occupant of what was manifestly her dwelling-house and place of abode for doing occasional washing sustains defendant’s contention that this was not a building used exclusively for a dwelling within the meaning of the statute, 'as it seems to me the provision of the statute in question means a building, all of which, considered as a whole, in its general and preponderating use, is designed for and devoted to occupation as a dwelling, as a dwelling of its ldnd would be ordinarily used, and to the exclusion of any distinct portion thereof being openly and habitually devoted to some other purpose, as that of business. If a distinct part of the building in question had been dedicated by a sign or otherwise to use as a public laundry or storehouse, and the public had come and gone to and from it in the manner in which people do use such a public place, defendant’s contention might be well founded. But such was not the case. The house was planned and occupied primarily as a dwelling-house, and when certain rooms were not in use for domestic purposes they were used by the occupant for doing certain work. This use was of the manner in which rooms in a dwelling-house would be used, rather than that which would attend the use of a public place of business. It could not have been the intention of the legislature that a person’s dwelling-house should lose the benefit of this provision her *570cause occasionally or even habitually the occupant, as a lawyer, devoted a room intended and used as his private library to working upon his cases, or as a washerwoman, devoted the room intended and used for her kitchen to doing some of her washing.

The other question arises over the building designated in the evidence at No. 1516 South Salina street, and owned by one Durango. In her original application for a license defendant treated this as coming within the provision of the statute relating to buildings used for dwelling purposes, but she now seeks to establish that it was not such a building, and, therefore, should not be counted.

In view of the conclusion which I have reached about the character of this building, it is unnecessary to decide whether the defendant at this time can reverse the position which she took upon her original application for a certificate and establish that a building then treated as occupied for dwelling purposes was not in fact so occupied or entitled to be treated.

The building in question did come within the provisions of the statute in my judgment. It seems that there was what would be ordinarily known as a block of several buildings of which the one in question was at one end. Some of the divisions of this entire structure were concededly used for business purposes, and if the structure is to be regarded as an entire building it manifest'v was not used exclusively for the purposes of a dwelling, but I do not think it is to be so treated. It appears by the evidence that the structure outside of the division in question was first built and that then this building or division was added on. What had been used for the end wall before now became a division wall between the old and the new structure. ’ For one story at least the two buildings did hot come together, and above that' they were separated by a partition wall. There was no communication inside between the new addition and the old building. The roofs did not evenly join on to each other, one being higher than the other. The parts of the old'building and the new division had separate street numbers, and the new part or building in question at this time and at the time of defendant’s application and always was used exclusively as a flat for dwelling purposes. I have no doubt but what, under these circumstances, it is to be treated as a separate and distinct building, used exclusively for dwelling purposes. The petition is granted, with costs.

Petition granted, with costs.