Summary
In Matter of McCusker (23 Misc. 446), CLEARWATER, J., said (p. 450): "Regularly, in common English, means: Constituted, appointed, or conducted in the proper manner; conformable to law or custom; duly authorized."
Summary of this case from People v. FullerOpinion
April, 1898.
George E. Sands, for petitioner.
Howard Peck, for county treasurer of Rensselaer county.
Frederick A. Chew, for Bernard E. McCusker.
This is an application for the revocation of a liquor tax certificate upon the grounds:
1. That the traffic is conducted in a building on the same street and within 200 feet of a church.
2. That the defendant made false statements in the application for the transfer of his certificate.
The matter is submitted upon the petition, answer and the testimony taken before a referee.
The defendant originally obtained a liquor tax certificate for the carrying on of his business at Nos. 28 and 30 Division street in the city of Troy, a building owned by his sister, who terminated his lease, and let the property to two other brothers, whereupon the defendant had his certificate transferred to a building upon the southwest corner of Third and Division streets in that city. As originally constructed, the latter building had three entrances on Division, and one on Third street. The entrance on Third street has never been used by the defendant, is nailed up and permanently closed, and a portion of the bar projects beyond the interior opening. On the adjoining lot upon Third street is the Jewish Synagogue of Berith Sholom.
Chapter 112 of the Laws of 1896, prohibited traffic in liquor in any building on the same street and within 200 feet of a building occupied exclusively as a church, the measurement to be taken from the center of the nearest entrance of the church to the center of nearest entrance of the place in which the traffic was to be carried on (§ 24, sub. 2), and it has been held that a building situate upon a corner of two streets is within the inhibition of the act notwithstanding it fronts on a different street from the church. People ex rel. Clausen v. Murray, 5 A.D. Rep. 441; Matter of Zinzow, 18 Misc. 653.
By chapter 312 of the Laws of 1897, however, the law was amended so as to provide that the measurement shall be taken in a straight line from the center of the nearest entrance of the church to the center of the nearest entrance of the place in which the traffic is to be carried on. Sec. 24, sub. 2.
It is claimed by the defendant that this means that the measurement must be made in a line as the street runs, and if thus made, the Division street entrance cannot be reached, as to include it, it is necessary on reaching the corner of Third street, to turn at right angles.
I do not so understand the law. A straight line is one free from angularities or curvatures, and is the shortest and most direct distrance between two points. Thus measured all the Division street entrances are within the prohibited distance.
It is also claimed by the defendant that the synagogue is not a building occupied exclusively as a church within the meaning of the statute.
Five societies: The Independent Order of Benai Berith, The Independent Order of Kesher Shel Barsel, The Free Sons of Israel, The Sisterhood Benevolent Society, and The Young Peoples' Association, meet in the basement and pay the trustees of the synagogue a small rental, which defrays the expense of light, fuel and the service of a janitor. This rent goes into the treasury of the synagogue, and is used for its maintenance. Membership in these societies is confined to persons of the Jewish faith, and their object is the union of Israelites in prompting the interests of the race, elevating the character of the Jewish people, inculcating principles of philanthropy, honor and patriotism, the support of science and art, alleviating the wants of the poor, visiting the sick, aiding the victims of persecution and protecting and assisting the widow and orphan. They are of a sectarian, but not of a religious character. Ninety per cent. of their members are members of the congregation of Berith Sholom and the principal reason for using the basement of the temple as a place of meeting, is to aid its congregation in defraying its expenses.
I do not think that this use of the basement of the synagogue by these benevolent societies is at all inconsistent with its use as a place of worship; nor do I think that its effect is to deprive the synagogue of the protection of the act. The precise shade of meaning to be given to the term "exclusively," has been so recently and fully discussed in the case of the People ex rel. Young Men's Association of Albany v. Sayles, 23 Misc. 1, that it is unnecessary to reiterate here the views there expressed. They are in accord with the authorities to which reference is made in the opinion in that case, and are controlling here.
It is but proper to add, that this proceeding is not prosecuted by any person connected with the synagogue, but by one Richard N. Holden, who admits entertaining a feeling of bitter hostility to the defendant, and whose action it is charged, is inspired in part by this ill-will, and in part by the brothers of the defendant who succeeded him as tenants of his sister's property. While the animus of the complainant is not specially pertinent, it is entirely apparent.
The act of 1897, provided, however, that the prohibition relative to a church, should not apply to a place in which traffic in liquor was actually carried on, on the 3d day of March, 1896.
At the close of all the testimony before the referee, the following stipulation assented to by counsel for all the parties was entered upon the minutes and is reported with them to the court:
"April 6, 1898.
It is admitted by the counsel for the respective parties, that the premises now occupied by Bernard E. McCusker as a saloon, to-wit, Nos. 60 and 62 Division street, or 161 Third street, as the case may be, have been regularly licensed and occupied continuously as a saloon for the sale of liquor for a period of at least ten years, without any interruption or cessation in the business up to the present time and that no other business except a saloon business was carried on there."
Parties by their stipulations, may in many ways make the law for any legal proceeding in which they are impleaded, which not only binds them, but which the courts are bound to enforce. They may stipulate away statutory and even constitutional rights. They may stipulate for shorter limitations of time for bringing actions than are prescribed by statute. They may stipulate that the decision of a court shall be final and thus waive the right of appeal; and all stipulations made by parties for the government of their conduct, the control of their rights or for the guidance of the court in the trial of a cause or the conduct of litigation of any character not unreasonable or against good morals or public policy will be enforced by the courts. Matter of Petition of New York, Lackawanna Western Railroad Co., 98 N.Y. 447-453; Buel v. Trustees of Lockport, 3 id. 197; Embury v. Conner, id. 511; Sherman v. McKeon, 38 id. 266; Allen v. Commissioners, etc., id. 312; Vose v. Cockcroft, 44 id. 415; Phyfe v. Eimer, 45 id. 102; De Grove v. Insurance Co., 61 id. 594; Ogdensburgh L.C.R.R. Co. v. V. C.R.R. Co., 63 id. 176; Wilkinson v. Insurance Co., 72 id. 499; Baird v. Mayor, 74 id. 382; Hilton v. Fonda, 86 id. 339; Steen v. Insurance Co., 89 id. 315; Matter of Cooper, 93 id. 507; Stedeker v. Bernard, id. 589.
Although the statute uses the adverb "lawfully," and the stipulation "regularly," it is, so far as this proceeding is concerned, an idle waste of time and words to undertake to distinguish them in meaning. Regularly, in common English means: Constituted, appointed, or conducted in the proper manner; conformable to law or custom; duly authorized. And if as agreed by all the parties to this proceeding, the premises of the defendant were regularly thus licensed and occupied continuously at least nine years prior to the passage of the act of 1897, they are clearly within the exemption.
This stipulation renders further discussion of the case useless, and the application to revoke the defendant's license is denied, with such costs and disbursements as are properly taxable in a special proceeding.
Ordered accordingly.