#### Matter of the Application of Michael Seitz.

(Supreme Court, Kings Special Term,

June, 1900.)

Liquor Tax Law — Rebate refused, on surrender of certificate, if any complaint for violation of statute is pending.

Under the Liquor Tax Law (L. 1896, chap. 112, § 25), an unexpired liquor tax certificate cannot be surrendered and a rebate recovered where any complaint, prosecution or action for a violation of the statute is pending against the holder of the license whether the said violation occurred during the running of the certificate sought to be surrendered or at any time prior.

Application for a writ of mandamus against the commissioner of excise of the State of New York to compel him to pay to the applicant the rebate on a surrendered liquor tax certificate for the time it had yet to run.

John A. Kamping for application.

P. W. Cullinan opposed.

Gaynor, J.:

This application is opposed on the ground that the applicant was indicted for an alleged violation of the Liquor Tax Law while holding a liquor tax certificate which expired prior to the one now sought to be surrendered having been issued to him, and has not been acquitted under the said indictment. This seems to be a good objection. The only right to such rebate is under section 25 of the Liquor Tax Law, and it cannot be got except within the strict terms thereof. The question is not one of forfeiture. That section permits a person holding a liquor tax certificate to surrender it to the officer who issued it, providing there be not pending against him any “ complaint, prosecution or action *”*for any violation of the Liquor Tax Law. If any such be pending he has no right to offer to surrender it, and such an offer could not be entertained. This disability is not confined by the statute to such a violation during the term of the certificate to be surrendered, but is based on any violation of the statute for which a complaint, prosecution or action is pending. Such surrender can be applied for only upon a verified petition showing that no such complaint, action or prosecution is pending. If such petition cannot be made *109there can be no surrender. And upon such surrender to such officer who issued the certificate, the state commissioner of excise, to whom the verified petition and the surrendered certificate have to be transmitted, has to hold the matter in abeyance for 30 days to see if any such complaint, prosecution or action be brought after such surrender, and if any be so brought *“*such petition shall not be granted until the final determination of such proceedings or action ” in favor of the certificate holder. In brief, the construction of section 25 is this: If a complaint, prosecution or action for a violation of the Liquor Tax Law at any time be pending, the certificate holder cannot surrender the certificate to the officer who issued it for transmission to the state commissioner of excise; and if none be pending, and such surrender and transmission be made, the latter officer has still to hold the matter for thirty days before paying the rebate, and if meanwhile one be brought he must await an acquittal before paying. The object of the statute is that rebates shall not be paid to those who shall be convicted of violating the statute. Whether such violation occurred during the running of the certificate sought to be surrendered, or previously, can make no difference.

The application is denied.