#### Matter of the Petition of Henry H. Lyman, as State Commissioner of Excise, for an Order Revoking and Cancelling Liquor Tax Certificate No. 10,402, Issued to Julius Scharmann.

(Supreme Court, New York Special Term,

October, 1900.)

Liquor Tax Law — Proceeding to revoke certificate not stayed because of pending action on bond.

A proceeding, to revoke a liquor tax certificate for sales on Sunday and during prohibited hours, will not be stayed because of the pendency, and until the decision, of an action upon a bond given by the holder of the certificate, although the violations alleged in each case are substantially the same, and this because the two proceedings are distinct and the relief contemplated is not the same in each.

Proceeding to revoke and cancel tax certificate.

H. H. Kellogg, for petition.

Page & Eckley (Alfred R. Page, of counsel), for respondent.

Lawrence, J.

This is a proceeding to revoke and cancel a liquor tax certificate pursuant to section 28, subdivision 2, of the Liquor Tax Law, on the ground of violations of different subdivisions of section 31 thereof, to-wit, Sunday sales and sales during prohibited hours, etc. The attorneys for the respondent move that this proceeding be stayed pending the outcome of an action, which had been brought upon the bond given by the respondent Scharmann, and the Fidelity & Casualty Company of New York, on the ground that, inasmuch as the violations of the Liquor Tax Law, set forth in the complaint upon the bond, are substantially the same violations as those for which the revocation of the certificate is sought, the respondent should be given the benefit of a jury trial. It was held by the Appellate Division of this department in Lyman v. Shenandoah Social Club, 39 App. Div. 459, that “ The liability of a surety upon a bond, given in pursuance of section 18 of the Liquor Tax Law (Chap. 112, Laws of 1896, as amd. by chap. 312 of the Laws of 1897), is not limited to the civil or criminal penalties prescribed in that act for the violation *622of its provisions,” and that “ Upon proof that the premises were disorderly and that liquor was sold thereon on Sunday and between one and five a. m. on other days, in violation of the conditions of the instrument, the surety becomes obligated to pay as liquidated damages the penal sum mentioned in the bond, independently of the fact that a judgment for a like amount may have been recovered against the principal in an action for the civil penalties;” that *“*An action upon such bond is not criminal either in form or substance, but is a civil action upon a contract.” In the case of Matter of Lyman, 46 App. Div. 387, many of the cases relating to-this subject were reviewed by Hardin, P. J. The learned justice says, at page 394, that *“*Power to revoke certificates granted under the Liquor Tax Law is conferred upon Special Terms of the Supreme Court, or a justice of that court, and it is made the duty of such justice, or of the court to act and to revoke and cancel certificates where the holder has failed to comply, by truthful statements in his application, or otherwise, with the provisions of the law. Evidently the Legislature intended the action to be summary and was designed to furnish a ready and quick remedy for failure to comply with the provisions of the law.” That decision was affirmed in 163 N. Y. 552. It being evident that the proceeding for the revocation of the license is entirely distinct from the action upon the bond, I see no reason why the motion for a stay should be granted. A motion for a stay of proceedings in an action, on the' ground that another suit is pending, which embraces the same matters, will not be granted where it does not appear that the entire relief demanded and sought in one action could be awarded in the other. See Sorley v. Brewer, 18 How. Pr. 509; Litchfield v. Smith, 7 Robt. 306; People v. Northern R. R. Co., 53 Barb. 98; McCarthy v. Peake, 18 How. Pr. 138. This case will, therefore, take the usual course, and a referee will be appointed to take the proof in support of the application for the revocation of the certificate. Draw order accordingly and settle on notice.

■Ordered accordingly.