#### THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff in Error, *v.*JACOB HARTMANN, Junior, and GEORGE FISHER, Commissioners of Excise of the Town of Eastchester, Defendants in Error.

*Mvcise lam*— petition *of twenty*freeholders— *Hotel and tcmern license.*

The provisions of section 6 of chapter 628 of 1857, requiring a petition of twenty freeholders as a prerequisite to the granting of a license for the sale of spirituous liquors, is repealed hy section 4 of chapter 175 of 1870, as amended hy section 2 of chapter 549 of 1873.

The provision of said act, forbidding the granting of licenses to persons not having sufficient ability to keep a tavern, and not having the necessary accommodations to entertain travelers, is still in force.

Appeal from a judgment of the Court of Sessions of Westchester county in favor of the defendants in error, entered on a motion to quash an indictment found against 'them in said court, as commissioners of excise of the town of Eastchester, for granting licenses contrary to the provisions of section 6 of chapter 628 of 1857.

*Wm. H. Yarn Gott,*for the plaintiffs in error.

*W. Bowrlm*Ooohrcm, for the defendants in error.

Dykman, J.:

The defendants were indicted for improperly granting licenses for the sale of spirituous liquors, as commissioners of excise of the town of Eastchester, in Westchester county. In various ways and in different counts in the indictment the defendants were charged with granting license to various persons to sell spirituous liquors, to be drank on the premises, without the presentation of a petition signed by twenty freeholders of the State residing in the election district where the tavern was proposed to be kept; second, with granting license to sell spirituous liquors, to be drank on the premises of the person licensed, in cases where such person had not sufficient ability to keep a tavern, and had not the necessary accommodations to entertain travelers; and third, with granting licenses to persons who were not of good moral character.

*603The district attorney obtained permission to enter a *nolle prose qui*upon tbe counts wbicb charged tbe last offense, and then, upon motion of tbe defendants, tbe court quashed tbe indictment in respect to tbe counts wbicb charged tbe two first-named offenses and gave judgment for tbe defendants.

Tbe first question presented here is, has section 6 of tbe Laws of 1857, chapter 628, been so far abrogated by section 4 of chapter 175 of tbe Laws of 1870, as amended by section 2 of chapter 549 of tbe Laws of 1873, as to dispense with'the necessity of a petition by twenty freeholders as a prerequisite to tbe granting of a license for tbe sale of spirituous liquors to be drank on tbe premises. In tbe case of tbe *People*v. *Smith*(9 Hun, 446), in tbe fourth department, it was held by tbe G-eneral Term that tbe provisions of tbe law were so abrogated, and that license for tbe sale of spirituous liquors to be drank on tbe premises, might be granted by tbe commissioners of excise to any person of good moral character approved by them on tbe written application signed by tbe applicant only.

It is not intended to assert that any such or similar language was used by tbe court in tbe opinion in that case, but simply that such is tbe doctrine and teaching of that case. Now, this decision has since been reversed in tbe Oourt of Appeals, but not upon this point; and, as we understand tbe opinion, it is to tbe effect that no petition of freeholders is now necessary. Even if we were not bound by this decision, we should have no hesitation in bolding tbe same way. As to these counts in this indictment, therefore, wbicb charged these defendants with this offense, tbe judgment of tbe court below is right.

Now, as to tbe second question, this indictment contains two counts which charge, substantially, that these defendants bad granted license to various persons to sell strong and spirituous liquors, who bad not sufficient ability to keep an inn, tavern or hotel, nor the necessary accommodation to entertain travelers.

These allegations bring this case dh*ectly within tbe principle decided by tbe Court of Appeals in tbe case of *The People*v. *Smith.*There tbe defendant was indicted for selling strong and spirituous liquors in quantities of less than five gallons at a time, to be drank on bis premises, without having a license therefor as a hotel-keeper. Tbe jury found him guilty. There was no question *604but wbat be did sell in tbe quantities named, to be drank on bis premises, nor but that be did so without having a tavern license. His defense was, however, that be bad license from tbe excise board to sell on bis premises in tbe quantities named, under and in pursuance of tbe law of 1870, as amended by tbe law of 1873. Tbe Court of Appeals held that this was not sufficient, and reversed tbe decision of tbe General Term, and affirmed tbe conviction.

This seems to be decisive of this case; and we bold, in accordance with it, that tbe tenth and eleventh counts in this indictment charged an offense which was indictable.

Tbe court below was in error in quashing tbe indictment as to these two counts, and tbe judgment must be reversed.

Present — Barnard, P. J., Gilbert and Dykman, JJ.

Judgment reversed and new trial granted.