#### In the Matter of the Application of David J. Whitney for a writ of Mandamus, etc.

*(Supreme Court, Special Term, New York County,*

*Filed January 31, 1889.)*

1. Excise law — Mandamus — Requiring police commissioners to enforce—By whom may be applied for—When should issue.

A writ of *mandamus*requiring the police commissioners and superintendent to enforce the provisions of the excise law prohibiting the sale *or*other disposition of intoxicating liquors, between the hours of one and five o’clock in the morning, by a restaurant-keeper having an excise license, may he applied for by any citizen or class of citizens taking an interest in the observance and enforcement of that part of the law; and, on a proper case made, a *mandamus*should issue requiring the licensed place to be closed and kept closed between these hours.

2. Same—Restaurant-keeper—No right during these hours to supply WINES AND LIQUORS WITH MEALS.

A restaurant keeper, unlike the proprietor of an inn or hotel, has no right during these hours to furnish liquors with meals, nor can he during the same period, lawfully supply the patrons or participants of a ball in the building, with wines and liquors as a part of their meals.

3. Same—When writ should not be granted.

But the presumption is that these officers will enforce the provisions of the law, and, without proof that they will not, the writ should not be granted.

Daniels, J.

The object of the application is to obtain a writ of *mandamus*requiring the police commissioners and superintendent to enforce the excise law prohibiting the sale or other disposition of intoxicating liquors, wines or ales, at the Metropolitan Opera House between the hours of one and five o’clock in the morning, and to close the place of the respondent during those hours. The occupant of the premises is Ernest Dowal. A license to use the premises as a restaurant has been issued by the excise commissioners, and that license still continues in force. Under that license the occupant states that he proposes “to provide and furnish by virtue ” of said license the eating and drinking under my supervision and control upon the occasion of said ball, or entertainment, but it is not proposed or intended to furnish at any time after one o’clock in the morning, to the end thereof, to any one, any drink of' any kind except with meals, and none shall or will be otherwise furnished or provided, and then only in the supper room, and no bar will be opened or maintained at any time or hour, upon said occasion. The sale of liquors with meals at all hours during the continuance of balls has prevailed in this city for- very many years.

A ball is to take place in this building and the occupant, under the authority of this license proposes and intends to supply the patrons or participants with liquors and wines as a part of their meals between the hours of one and five o’clock in the morning. Whether he can lawfully do that *969depends upon the effect to be given to one of the sections of the excise laws of the state.

The license seems to have been issued under chapter 549 of the Laws of 1873. And the section in question declares that “licenses granted, as in this act provided, shall not authorize any person, or persons, to expose for sale, give away or dispose of, any strong or spirituous liquors, wines, ale or beer, on any day between the hours of one and five o’clock in the morning; and all places licensed as aforesaid shall be closed, and kept closed, between the hours aforesaid, and at all other times when such selling is not authorized by law. And it shall be the duty of every sheriff, constable, policeman, and officer of police, to enforce the observance of the foregoing provisions. Nothing herein contained shall be construed to prevent hotels from receiving or entertaining travelers at any time, subject to the restrictions contained in this act and the act hereby amended.”

The law is reasonably plain, and the fact that ii? has not heretofore been observed or enforced at balls in this city will not deprive it of authority. That might well be considered in determining the construction to be placed upon the section, if its meaning or intent were doubtful or obscure. But it does not seem to be so, and neither neglect to observe it, nor acquiescence in its violation, will entitle the occupant of these premises to repeat that violation of the injunction of the law, without exposing himself to the punishment therefor prescribed by other parts of the excise laws. What he swears he intends and proposes to do is to sell and dispose of liquors and wines to persons ordering meals from him during these hours of the morning. But that is what the law has forbidden him to do.

It has not only declared that he shall not sell, give away, or dispose of those articles during the period intervening between one and five o’clock in the morning, but in addition to that his place, licensed in this manner, is required to be closed, thereby further ensuring the observance of the law. To supply liquors, wines or ales between these hours must involve their sale, gift, or disposition, and that the law declares shall not be done. And to prevent it from being done it has been made the duty of the officers mentioned in this section to enforce the observance of its provisions, a prominent one of which is that the place licensed shall not only be closed but kept closed between these hours. How its mandates could be more plainly expressed it is difficult to see.

The *Case of Breslin*(45 Hun, 210; 7 N. Y. State Rep., 764), has been cited as supporting the right claimed for the licensee. But it affords him no support for the position taken by him. For, in that decision, the rights of the licensee, as the proprietor of an inn or hotel, were alone in controversy. They are plainly distinguishable from those of the proprietor or licensee of a restaurant. One of the de*970signs and objects of an inn or hotel, and, indeed, the chief design, is the entertainment of travelers. They may, and usually do, arrive and seek shelter and protection at all hours of the night, as well as of the day. ' And for that reason this section of the law has not required inns or hotels to be closed at any time, as it has the places of all other licensees. And it was chiefly on that distinction that the decision in the *Breslin Case*proceeded. The occupant of this hall has been licensed, not as the keeper of an inn or hotel, and he is not, therefore, within either the facts or reasoning of that decision. But he is directly in subjection to the mandate of this section of the law requiring his place, mentioned in the license, to be closed, and prohibiting there the sale, giving away or disposition of liquors, wines or ales, from one to five o’clock in the morning.

If he attempts to do what he swears he intends doing, he will violate these prohibitions of the law for which neither this nor any other court can shield him from prosecution, or in case of his conviction, from punishment. And beyond that liability, if he attempts to violate these restraints, then in that event the statute declares that it shall be the duty of every sheriff, constable, policeman and officer of police to enforce the observance of the provisions of the statute, a prominent one of which is that the licensed place shall be closed and kept closed between these hours.

The *mandamus*may be applied for by any citizen or class of citizens taking an interest in the observance and enforcement of that part of the law, requiring the policemen and officers of the police to enforce the law and' require the place of the licensee to be closed during these forbidden, hours *(People*v. *Daley, 37*Hun, 461).

But to entitle the applicant to the writ they must show that the police commissioners or the superintendent of the police force do not intend to secure the observance of the law. On that subject their proof is materially defective. It is not to be presumed that the officers mentioned in the statute will be in any respect delinquent in the performance of their duty, by this statute so clearly enjoined. The presumption on the other hand is that they will do what this statute has declared they shall do. And that they will not enforce its provisions has not been shown as a matter of fact.

And for that defect in the proof, the motion will be denied, without costs._