#### Henry H. Lyman, as State Commissioner of Excise, Plaintiff, *v.*Thomas H. Cheever and United States Guarantee Co., Defendants.

(Supreme Court, Erie Special Term,

March, 1900.)

Liquor Tax Law — Surety liable where traffic is continued after surrender of certificate — Demurrer.

A complaint, by the State excise commissioner against a liquor tax certificate holder and his surety for a violation of the conditions of the bond, which alleges that the holder of the certificate was trafficking and continued to traffic, in liquors after he had surrendered his certificate, is not demurrable, as under a proper construction of the Liquor Tax Law, an attempt by the holder to surrender the certificate, without ceasing to traffic in liquors is ineffectual to exonerate the surety from the liability which he has assumed for illegal traffic in liquors.

Demurrer to the complaint, upon the ground that it fails to state facts sufficient to constitute a cause of action.

Mead & Stranahan, for plaintiff.

Peckham, Warner & Strong, for defendants.

*101Keuse, J.

The action is brought to recover the penalty of a bond given by the defendant Cbeever, as principal, and the defendant guarantee company, as surety, for a violation of its conditions by the defendant principal illegally trafficking in liquor.

It appears in effect by the complaint that the certificate issued to the defendant principal, permitting him to traffic in liquors, was surrendered for cancellation and rebate on or about September 1, 1898, and that the violations occurred thereafter in the same month.

The complaint alleges substantially that the defendant principal had not, at the time of this surrender, ceased to traffic in liquor, and that he did not cease to traffic in liquor thereafter.

The certificate would not, by its terms, expire until the first day of May succeeding the date of its surrender, for the Liquor Tax Law provides that the taxes under the provisions of that act shall be assessed yearly, commencing on the first day of May, and if the traffic is commenced after the first of May, the assessment shall be for the balance of the year proportionately. Liquor Tax Law, L. 1896, chap. 112, § 12.

One of the provisions of the bond is that the defendant principal will not violate any of the provisions of the Liquor Tax Law while the business for which the certificate is given shall be carried on.

Section 25 of the Liquor Tax Law provides in substance that if the holder of a liquor tax certificate who is authorized to sell liquor under the provisions of the act, against whom no complaint, prosecution or action is pending, on account of any violation thereof, shall voluntarily, and before arrest or indictment for a violation of the Liquor Tax Law, cease to trafile in liquors during the term for which the tax is paid under such certificate, he may surrender such tax certificate, under certain other terms and conditions mentioned in said section, and which do not relate to any question involved or to be determined at this time.

It will thus be seen that the right to surrender such certificate is not absolute, but depends upon certain conditions therein named, and an attempt to surrender the certificate without ceasing to traffic in liquor is ineffectual, I think, to exonerate the surety.

It is further contended on behalf of the plaintiff that even if the defendant principal had ceased to do business at the time of the surrender, and violated the provisions of the Liquor Tax Law at any time during the next succeeding thirty days, the defendant principal *102would not only lose his right to the rehate, but that he and his sureties would he liable upon the bond given at- the time of receiving the liquor tax certificate authorizing the traffic in liquors.

The Court of Appeals have held that neither the licensee nor his assignee is entitled to the rebate if the licensee violates the provisions of the Liquor Tax Law within the thirty days after this tentative surrender (People ex rel. Miller v. Lyman, 156 N. Y. 407), hut I am not aware that the question of the liability of the surety upon the bond for such a violation has ever been decided. However that question may be determined, I am of the opinion that, under the allegations in this complaint alleging in substance that the defendant principal had not ceased to traffic in liquor, as the act requires, the liability of the principal and surety upon this bond continued according to- the original terms and conditions thereof.

The demurrer is, therefore, overruled, with costs, with leave to the defendants to answer within twenty days after entry of judgment and notice thereof, upon payment of costs.

Demurrer overruled, with costs, with leave to defendants to answer within twenty days after entry of judgment and notice thereof, upon payment of costs.