#### In the Matter of the Petition of Maynard N. Clement, as State Commissioner of Excise, Appellant, for an Order Revoking and Canceling Liquor Tax Certificate No. 3,904, Issued to Mary A. Corcoran, Respondent.

First Department,

December 11, 1908.

Intoxicating liquors — *“*hotel ” defined. — general statute not local code ■ controlling.

The question as to whether a building in the city of Hew York comes within the definition of an hotel so as to entitle the owner to a liquor tax certificate is to be determined bj section 31 of the Liquor Tax Law, and not by the definition of an hotel as given in section 10 of the Building Code of the city.

Hence, when such building in the city of Hew York contains at least ten bedrooms above the basement, exclusive of those occupied by the family and serv*230ants, as required by section 31 of the Liquor Tax Law, and complies with' the other requirements of the section, the owner is entitled to a certificate although it does not come within section 10 of the Municipal Building Code which defines an hotel as a building having more than fifteen sleeping rooms above the first story.

Appeal by the petitioner, Maynard H. Clement, as State Commissioner of Excise, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of April, 1908, denying a motion to revoke and cancel a liquor tax certificate.

*Royal R. Scott,*for the appellant.

*Julius M. Mayer,*for the respondent.

Scott, J.:

This is an appeal from an order of the Special Term denying a motion to revoke the liquor tax certificate issued to Mary A. Corcoran, upon the ground that she made a false statement in her application for such certificate. The facts are undisputed. On April 17, 1907, the said Corcoran verified and presented to the Special Deputy Commissioner of Excise a statement and application in writing for a liquor tax certificate for certain premises in the city of Hew York. She stated that she intended to carry on a hotel on said premises, and that the same had been continuously occupied as an hotel since the year 1882. From her statement and the report of the special agents detailed to inspect the premises it appeared, and it is .now conceded that the premises conformed in all respects to the provisions of section 31 of the Liquor Tax Law in relation to hotels and hotelkeepers so far as concerns the number of bedrooms above the basement, and their construction. The false statement attributed to the applicant is that she answered “ yes ” to the question : *“*Does such hotel conform to the laws, ordinances, rules and regulations relating to hotels and hotelkeepers, including all laws, ordinances, rules and regulations of the State or locality pertaining to the building, fire and health department in relation to hotels and hotelkeepers?” The falsity of this answer is alleged to lie in the fact that the building does not conform to the definition of a hotel contained in section 10 of the Building Code of the city of Hew *231York, in that it does not contain more than fifteen sleeping rooms above the first story.

The Liquor Tax Law regulates with great particularity the traffic in liquors within tin’s State, forbidding generally all traffic on Sundays, and between certain hours on other days. It was deemed necessary, however, to modify this prohibition somewhat with respect to sales of liquors to guests of hotels, and to do this it was also necessary to specify what character of building should be deemed to be an hotel within the meaning of the act, for otherwise any place answering the common-law definition of an hotel would have been enabled to avail of the special privilege extended by the act to hotels. Accordingly subdivision 2 of section 31 of the Liquor Tax Law (Laws of 1896, chap. 112, as amd. by Laws of 1903, chap. 486) required that any building to be used as an hotel as permitted by that act must contain (in cities and in the larger villages) at least ten bedrooms above the basement, exclusive of those occupied by the family and servants, to be constructed, furnished and lighted as specified in the act, together with a dining room, kitchen and conveniences for cooking sufficient to provide *l>ona fide*meals at one and the same time for twenty guests. It is not denied that the premises in question comply with these requirements. Subdivision 1 of section 31 of the Liquor Tax Law (as amd. by Laws of 1903, chap. 486) also provided that any building to be used as an hotel under the act shall conform to the following requirement: “ The laws, ordinances, rules and regulations relating to hotels and hotel keepers, including all laws, ordinances, rules and regulations of the State or locality pertaining to the building, fire and health department in relation to hotels and hotel keepers, shall be fully complied with.” There was in force in the city of New York when Mary A. Corcoran filed her application for a liquor tax certificate, and is now in force, a Building Code adopted by the board of aldermen pursuant to legislative authority, which regulates the erection of all classes of buildings in that city, providing for each class such methods of construction and safeguards as the circumstances seem to require. Among the other classes of buildings thus provided for are hotels, concerning which special provisions are made respecting their manner of construction, the proportion of lot area which they may occupy, the fire escapes to be placed upon them and the like. It *232became necessary, to avoid endless repetition of description, to define what buildings should, within the meaning of the Building Code, be deemed to be hotels and subject to the special provisions applicable to hotels, and accordingly it was provided by section 10 of that Code as follows:

“ Sec. 10. Hotel, Definition of.— A hotel shall be taken to mean and include every building, or part thereof, intended, designed or used for supplying food and shelter to residents or guests, and having a general public dining-room, or a cafe, or both, and containing also more than fifteen sleeping rooms above the first story.”

The building for which Mary A. Corcoran applied for and obtained a liquor tax certificate, although it contained ten" bedrooms above the basement, did not contain more than fifteen sleeping rooms above the first floor, and hence it is insisted that it did not comply with the local ordinances respecting hotels. This contention cannot" be upheld. The Building Code does not provide that no building may be used as an hotel or for hotel purposes unless it has more than fifteen sleeping rooms above the first floor, but only that unless it does contain that number of sleeping rooms it shall not be considered as an hotel within the meaning of the Code, and subject to the special provisions thereof respecting hotels. A building containing a less number of- sleeping rooms may still be used as an hotel for the entertainment and shelter of guests, and may even be denominated as an hotel. It is quite clear the definitions of the word “hotel” as used in the Liquor Tax Law, and in the Building Code were adopted in each case with reference to the particular act in which they are to be found, and that a building which conforms to the requirements of the Liquor Tax Law may be an hotel within the meaning of that act, and not an hotel within tlie meaning of the Building Code. Such a building must conform to the local laws, ordinances, rules and regulations respecting buildings of its kind, but not necessarily to those respecting buildings of a different kind by whatever name denominated.

It follows, therefore, that a building having ten, but’ less than sixteen, bedrooms above the basement or first floor, if it otherwise complies with the Liquor Tax Law, and the requirements of the Building Code, may receive a liquor tax certificate and be used *233as an hotel under the Liquor Tax Law, although it would not be classed as an hotel under the Building Code, and be subjected to the provisions of that Code especially applicable to buildings falling within the definition of an hotel as used in that Code. The order appealed from must be affirmed, with ten dollars costs and disbursements.

Patterson, P. J., Ingraham, Laughlin and Clarke, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.