The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1877-12-29

mandamus TO compel tho Commissioners Of Excise TO
grant licenses to James s. Kelly and Edward rhomp-
son, the full facts Of which have already been pub
hshed in the HERALD. The motion was in tho nature
Of test case, 10 determine the rights oil liquor dealers
In the promises Kelly was the proprietor OF a hotel
in Houston street and Thompson Is the well known
restaurateur. Kelly alleged In his petition that he
hfd complied with all tho requirements OF the law Of
1857, but that the Commissioners, although express
ing themselves satisfied OF this fact at the time he
paid his money, now refuse TO give him license on
the ground that the cooking for his guests is not done
on the premises which they regard sufficient, dis
qualification under the statute.
JUDICIAL DETERMINATION.
Judge Van Hoesen, In his opinion after recing the
facts says ut is admitted that Mr.. Thompson the
keeper or a restaurant merely Tho keeper Of res
taurant who has no beds for the accommodation OF
travellers is not nnkeeper therefore he not under
tho act OF 1851 entitled to lcensen In regard tho
case Of Mr. Kelly Judge Van Hoesen after reciting the
facts OF the case, goes 10 say that at the very
threshold of tie argument the question was raised
whether tue granting OF licences was not matter dis-
matter OF discretion II was conceded that tho Court
should not-save in case OF gross and palpable
abuseattemp TO control the exercise oil that discre
ton. In OK parle Persons, Hin, 655 the Supreme
Court held that until u resolution that a license
should be granted was actually entered on tho nin-
utes Of the Board the question OF granting license
open one, with the decision OF which the Court
the question ana entered It's inmates resolution
III favor ot granting license a mandamus may be
issued to compel tho performance OF the merely
ministerial act OF delivering the license. IL
necessary, undor the present law, Tor the Board
to enter It's minutes formal resolutions but IL is
still necessary that II should decide that the applicant
is q mt and proper person to receive n license, and
that all the requirements OF the law met ana co
Piled with before the Court can compel by mandumus
the issue OF u license. II It had been conceded
the argument That the Board mad ever actually de-
terminod 70 grant Mr. Kelly license and that
mi Ind q
disqualfy him for receiving It, should have ielt 1t
, my tuly to grant the mandamus. But | understand
the fact to be that ~ has the Board resolved
that Mr. Kelly ought TO have or should have license
The Board raises the objection that Mr.. Kelly cannot
cook meals vci uas Oh his premises and therefore
has not the requisite accommodations Tor an Inn
keeper.
II am called upon 70 decide whether he be an inn
keeper or not. II an applicant DO an innkecper, the
Board ought distinctly to pass upon the question OF
shall have license, mandamus VIII Die II there bc
undue delay III issuing II. II they determine that all
the conditions exist under which the law provides
that licenses may DO issued, and II they decline to
Incense because they, deem it best for tho com
the question VIII then arise whether the
courts Of to-day yI loci shsmsslyss bound py ,1o
AZ r ~ ia c.um Of rae wonar n ihc
Mayor Mason, 4. D. smith, l42, l47. Those
judges both expressed tie opinion that the granting
OF licenses purely discretionary with the EXCISE
Commissioners Tho question which both parties
have requested mo 10 decide is whether Mr.. Kelly DO
ions ia this state, rs well as in England respect ne
the accommodations a house must AFFORD III order to
be emitted to ne name 81 nm tavern OF hotel Those
OF Chief Justice DAILY IN Cromwell vs.. Stephens,
Abb. n s.. p 20 : i Is sufficient for me
20 tho learning he has brought TO my hand and 10
take tho law as ind 1t laid down In
tho decisions no has ,, cited and IL tho de-
"a lodging house, in which no provision
is made for supplying the lodgers with their
.---sW
OF entertainment In which the guest pays so much per
day for his room, and takes his meals or not, as he
thinks proper IN the RESTAURANT paying separately FOR
each moa MS he takes 1t. When the restaurant forms
part OF tho establishment, and The house is kept
under one general management for the reception oi
all travellers that may come y an nm there being
material difference between thnt anu the Eza-
INN Spd s y OI ms
OF time 10 argue that lodging house keeper
an innkceper because he may send out and procure
cooked food for his guests AS we'll may it be con-
tended that Mr. Thompson, who Keeps eating
house, IS innkecper, because he could, II requested
send out aud sc the requisite bedding and bedcion
ing the accommodation Of guests who might wish
to pass the night IN his dining roon
Tue RESOURCES OF TIE KITCHEN.
"No rule be laid down us to the extent ard
sources OF tbs kitchen, but ~ seems TO that tho
Board must DO satisfied tnA the furnishing OF meals
is regular part VI the business OF the applicant for
license Tree lunch at the bar, or the occasional
bringing OF yctuas IRON IN adjacent restaurant, Will
mans experience teaches him that no man who OK
pccted 70 keep hotel wouiu seriously think OF
neIEhDorinR dlnlng room every article
OF cooked food that CUES, might order. The good
faith OF person VINO pr0lesscd to have such bust
ness plan would be suspected at once. u short
house which does not contain - means OF preparing
iood for the table in the ordinary way has not, 10
the language OF the act tho necessary accommoaa-
tons to entertain travellers Tho application Tor tho
mandamus must be denied"
MURPHY's Sublime IMPUDENCE''-H FINAN-
ciAL TRANSACTIONS FURTHER DETAILED.
WHO SHALL SUCCEED HIM?
sEither the subllmty Of impudcnco or Of nsanityn-
these wero the words with which Commissioner Nor
ton characterized yesterday the action Of hts fugitive
associate, Owen Murphy, Ia having drawn upon the
excise money at the Pacific Bank for another $1,000
through the Consolidated Bank of St. Cathariuos,
Canada at this time, when his dealcaton has already
been bazed abroad throughout the entire country. In
view Of this .subllme" conduct OF tho cxtrcasurer
of the Board Of Excise Dir. Morton gave up
all hope OF his returning to this city to
settle the difficulty. As the Excise building wore
a strangely deserted appearance, alter the crowds
that have bcseged II every day for weeks past,
Mr. Morton was asked II the business Of the office
at standstll He replied that It virtually was. The
Board did not intend TO any moneys for app
cations or to issue any new licenses until .tney
knew where they stood'-i. e., until the Commission
err oil Accounts nad completed their investigation and
made their report
THE roLicE HAVE DONE wIrn IT.
Supcrntcndent Walling, in answer some In
qulrcs, SAID yesterday .-"We have looked up Murphy
und there's an END oil It, Tho thing to do is 70
look Tor something else, tor We can't do anything
more about him. We have found out that he's IN
Canada and there the thing ends with the police. -
TRYING 10 GET HOLD OF the FUNDS
The check Tor $40, 900 winch Murphy has mad Tho
''submity OF impudepceo 10 draw at tins Gay upon
the Pacinc Bank through tho 1T. CptharIncs Console
dated Bank which, IL is gcncraily thought, only TOOK
II Tor coiiection not received by that institution
yesterday, but VIII probably arrive to-day, and then
he promptly protested. Mr. Burk, The cashier ol tao
Pacific Bank, said that they had no correspondent
III Buffalo where tho check was sent from Canadn u
would probably reach them through another CITY
bank. IL appears that Mr. Patterson, the present
strcasurcr'' OF tho Excise Board, been Trying
hard get mold OF the excise moneys, but thus lar
without avail. lie appeared yesterday morning at tho
Pacific Bank aud asked that tao $40, 900 there
SUI remaining 10 the credit oil "Owen Muir
ply, Troasufer,n should be transferred to him
as treasurer. the president OF the bank declined
until he shoum receive ruling OF tho Court 10 sude
HIM, and thou Mr Patterson thought tho bank might
we'll leo OF tner lawyers TO get an opinion
that point As tho bank cannot Gsu the money In us
present shape ana has 70 pay tax on its deposits tho
president Mr. Canpboil could not that ihls would
be very profitable Transaction, beside which he
thought tnat friendly SUIT resulting IN tho mandate
nj "A nj 2llc a ur he