(91 Hun, 142.)

#### PEOPLE ex rel. McNUTT v. MILLS et al., Excise Commissioners.

(Supreme Court, General Term, Third Department.

December 28, 1895.)

Intoxicating Liquors—Licenses—Discretion op Excise Commissioners.

The commissioners of excise are vested with a discretion in the granting or refusing of hotel licenses, and it is not an abuse of such discretion to refuse a license where there is evidence before them tending to show that the applicant is not of good moral character, and that his house has not in the past been properly conducted.

Appeal from Albany county court.

Certiorari by Joseph E. McNutt to review the determination of Charles H. Mills and others, commissioners of excise of the city of Albany, in refusing to grant an hotel license to relator. From an order directing the granting of a license, defendants appeal.

Reversed.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.

Richard 0. Bassett, for appellants.

Mark Cohn, for respondent.

PER CURIAM.

The relator, on the 13th of May, 1895, made application to the defendants, as excise commissioners of the city of Albany, for an hotel license for the premises No. 667 Broadway, in ihe city of Albany, he having occupied and had an hotel license for the same during the previous year. The petition of the relator for such license appears to have been in proper form, and accompanied with a bond, and a deposit of the prescribed license fee. On the 15th of May, the defendants, without giving any hearing to the relator, denied his application for a license, on the grounds—First, that the relator was not a person of good moral character; and, second, that considering the rights and interests of the property owners and the residents in the neighborhood, and the existing licensed places in the vicinity, they were satisfied that there was no immediate public necessity to be served in granting such license. That thereafter the relator requested a rehearing upon his application, and upon such rehearing witnesses were sworn, and a petition signed by a number of citizens was presented to the board, and after such hearing the defendants, as such board of excise commissioners, passed the following resolution:

> “Resolved, that the application of Joseph E. McNutt for an hotel license at the premises 667 Broadway be, and the same hereby is, rejected, and a license refused, for the reason that, considering the rights and interests of the property owners and residents of the neighborhood, and the number of existing licensed places in the vicinity of the place for which a license is sought, the commissioners of excise are satisfied that there is no immediate public necessity or convenience to be served in granting such application at this time.”

If, in determining this appeal, we were confined to this resolution, as containing the sole reasons for the defendant’s action, we would feel constrained to uphold the decision appealed from, and adjudge the action of the commissioners as arbitrary, and an abuse of the discretion confided in them; for it appears, in the papers accompanying their return, and in the return itself, that after refusing to grant *274the relator an hotel license because of the number of licensed places within the territory specified in the return, they subsequently granted a number of saloon licenses to other persons, and renewed existing licenses within such territory, and granted leave for the transfer of licenses from places without such territory to places within. But the return of the defendants to the writ of certiorari herein issued asserts that in the judgment of each of the defendants—

> “The Commercial Hotel, the premises for which relator seeks a license, is and has been kept by the relator in such a manner as warrants this board in holding, in reference to this application, that the relator is not a person of good moral character; * * * that this hotel for which relator seeks a license was very carelessly run, and people were permitted to frequent it who ought not to do so, and that it was run as a place for lewd women to visit for illicit sexual intercourse.”

There was evidence from which the commissioners might reach these conclusions, taken upon the hearing before them, and we do not feel that the conclusions arrived at by them were wholly unwarranted by the evidence. Under the discretion that is vested in the commissioners of excise, as to whom and what places they will license, we think that they have power to refuse a license upon the grounds that the person seeking it is not of a good moral character, or that the place kept by him is frequented by lewd women, or used as a resort for immoral purposes, and that a refusal to grant a license upon such grounds is not arbitrary, or an abuse óf the discretion vested in them.

For these reasons, we think that the order of the county court should be reversed, and the decision of the commissioners affirmed, with $50 costs and disbursements.