First Department, November, 1909.

[Vol. 134. ing against the said Amandus R. Bresler or your petitioner on account of any violation of the Liquor Tax Law, and that neither the said Amandus R. Bresler nor your petitioner had violated any provision of the Liquor Tax Law during the excise year for which such certificate was issued. On information and belief, that one Albert Fejes, an employee of the said Amandus R. Bresler, was arrested for a minor violation of the Excise Law on the 26th day of May, 1906, and convicted on the 11th day of June, 1906, and your petitioner further alleges upon information and belief that said conviction was for a violation which was not made in the presence of the said Amandus R. Bresler, the owner of said certificate, nor with the knowledge or consent of said Bresler, and that said Bresler was in no way responsible for the said violation, and that the same was against his expressed instructions and directions, and that no employee of Amandus R. Bresler had any authority to either sell, give away or in any way dispose of liquors on the premises then leased by said Amandus R. Bresler, and that such violation, if any, was the only violation of the Liquor Tax Law upon the premises covered by the said certificate. That more than thirty days have elapsed since the receipt of said certificate by the State Commissioner of Excise, as aforesaid, and that neither the said Amandus R. Bresler nor your petitioner, the person surrendering such certificate, was arrested or indicted for a violation of the Liquor Tax Law, nor were any proceedings instituted against them or either of them for the cancellation of said certificate. Nor was any action commenced against them or either of them for penalties." It further alleges that the State Commissioner of Excise refuses to make and forward the orders for the payment of the rebate provided for in section 25 of the Liquor Tax Law, and prayed that a peremptory writ of mandamus issue requiring said Commissioner to prepare and deliver two orders for the payment of such rebate.

The notice of motion asked that if the court refuse such peremp. tory writ then that an order be granted directing an alternative writ to issue. The respondent moved to dismiss the petition and quash the proceedings and from the order granting said motion. relator appeals.

Subdivision 1 of section 25 of the Liquor Tax Law (Laws of 1896, chap. 112), as amended by chapter 486 of the Laws of 1903 (now

App. Div.]

First Department, November, 1909.

Consol. Laws, chap. 34 [Laws of 1909, chap. 39], § 24, subd. 1), provides that "If a person holding a liquor tax certificate and authorized to sell liquors under the provisions of this act, against whom no complaint, prosecution or action is pending on account of any violation thereof, and who shall not have violated any provision of the Liquor Tax Law during the excise year for which such certificate was issued, shall voluntarily, and before arrest or indictment for a violation of the Liquor Tax Law, cease to traffic in liquors during the term for which the tax is paid under such certificate, such person or his duly authorized attorney may surrender such tax certificate to the officer who issued the same or to his successor in office, provided that such tax certificate shall have at least one month to run at the time of such surrender," with further provisions for the payment of a proportional rebate of the tax paid.

This right to a rebate is to be construed as resting upon a contract between the licensee and the State. (People ex rel. Stevenson Co. v. Lyman, 67 App. Div. 451.) This court said, upon examination of the cases in People ex rel. Munch Brewery v. Clement (117 App. Div. 539): "To entitle the holder to the rebate there are certain conditions precedent, the fulfillment of which must be completed at the time of the surrender, and being conditions precedent their fulfillment must be alleged, and the burden of establishing them is upon the certificate holder. These conditions are as follows: First, there must be no complaint, prosecution or action pending on account of a violation of the Liquor Tax Law; second, the person surrendering must not have violated any provision of the Liquor Tax Law during the excise year for which the certificate was issued; third, the certificate must be surrendered before arrest or indictment for a violation of the Liquor Tax Law; fourth, the person surrendering must have ceased to traffic in liquors during the term for which the tax was paid."

The appellant claims that as subdivision 3 of section 34 of the Liquor Tax Law* (now Consol. Laws, chap. 34, § 36, subd. 3) provides that "If there shall be two convictions of clerks, agents, employes or servants of a holder of a liquor tax certificate, for a violation of * Amd. by Laws of 1897, chap. 312, and since amd. by Laws of 1908, chap. 350.- [REP.

First Department, November, 1909.

[Vol. 134. any provision of this act, the liquor tax certificate of the principal shall be forfeited, and the said principal shall be deprived of all rights and privileges thereunder, and of any right to any rebate of any portion of the tax paid thereon," there having been but one alleged conviction of an employee, and no proceedings for cancellation having ever been brought, and the violation not having been by a person in charge of the premises, he is entitled to the rebate.

We do not think there is any conflict between these provisions. Construing all the provisions of the Liquor Tax Law and giving full force and effect to each, as is the duty of the court in considering a statute, they can all be harmonized. The right to a rebate depends upon the fundamental fact that the holder of a liquor tax certificate shall not have violated any of the provisions of the Liquor Tax Law during the year for which it was issued. That does not mean that he shall not personally have violated the law. In civil proceedings growing out of the Liquor Tax Law, brought either by the Excise Commissioner for the revocation of a license or by the certificate holder for a rebate, the principal is charged with and responsible for the acts of his agent or servant. Nothing need be added to the reasoning of Mr. Justice HISCOCK upon this proposition in Cullinan v. Burkard (93 App. Div. 31), the conclusion being: "Reasoning by analogy from such principles and decisions we see no good reason why the holder of a liquor tax certificate should not be held responsible for the act of his clerk in improperly selling liquor while engaged in the performance of his master's business, even though in such act he violated his specific instructions."

It seems to me that the proper interpretation of section 34, subdivision 3, in connection with section 25, subdivision 1, and section 28, subdivision 2,* comes down to a question of proof. Under subdivision 3 of section 34, in an action upon a bond or in a proceeding to forfeit and cancel a liquor tax certificate, or in a proceeding to compel the payment of a rebate, proof of two convictions of clerks, agents, employees or servants of the certificate holder is sufficient to forfeit the certificate and to deprive the principal of any right to a rebate. Here two convictions of employees is made conclusive proof of the

*Amd. by Laws of 1906, chap. 272, and since amd. by Laws of 1908, chap. 350; now Consol. Laws, chap. 34 (Laws of 1909, chap. 39), § 27, subd. 2.- [REP.

App. Div.]

First Department, November, 1909.

violation by the principal and nothing more need be shown than the record of such convictions. That it was within the power of the Legislature to enact such a rule of evidence as a condition to permitting the traffic in liquor is undoubted and is not questioned. But the right to a rebate depends upon the fact, not that there has been no conviction, but that there has been no violation of the Liquor Tax Law by the certificate holder. Therefore, in a civil proceeding to forfeit said certificate or to compel the payment of a rebate, the Excise Commissioner is not compeiled to show a previous conviction in a criminal court, but the law is satisfied if he establish a violation according to the practice and under the rules of law governing the trial of civil cases or proceedings.

Therefore the Commissioner may prove a violation by a judgment of conviction of the principal; or by common-law evidence of the facts may prove a violation by the principal on his own acts or those of his servant or agent. He may not establish the violation by the principal by one conviction of the certificate holder's agent or employee, because that conviction is res inter alios acta, but he may prove dehors the record the violation by the agent or employee for which that employee had been convicted; or, as pointed out, he may by force of the statute prove the violation by the certificate holder by proof of two convictions of his agent or employee. It seems to me, therefore, that a question of fact is presented by this petition upon which an alternative writ of mandamus may issue. The petitioner alleges that neither the certificate holder nor petitioner has violated any provision of the Liquor Tax Law during the excise year for which such certificate was issued. He alleges on information and belief that an employee of Bresler, the certificate holder, was convicted of a violation and that said violation, if any, was the only violation of the Liquor Tax Law upon the premises covered by the said certificate.

I think the fair interpretation of the petition is that while there was one conviction of an employee, there was no violation of the Liquor Tax Law, and as, in the absence of the statute, the proof of a conviction of the employee would not be proof of a violation by the employer, he has sufficiently alleged no violation to put the respondent to his answer. By this interpretation the several provisions of the statute alluded to may all stand, each being given

First Department, November, 1909.

[Vol. 134.

full force and effect, exhibiting a clear and consistent scheme and accords with the decisions of this court in People ex rel. Hupfel's Sons v. Cullinan (95 App. Div. 598) and People ex rel. Munch Brewery v. Clement (117 id. 539).

The order appealed from, should, therefore, be reversed, with ten dollars costs and disbursements, and a motion for an alternative writ of mandamus granted.

INGRAHAM, LAUGHLIN, HOUGHTON and Scorr, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted.

JOHN D. PARK & SONS COMPANY, a Corporation Organized under the Laws of the State of Kentucky, Respondent, v. CHARLES HUBBARD and Others, Appellants.

First Department, November 12, 1909.

Equity distinction between law and equity still exists — pleadingsupplemental complaint in suits in equity and actions at law - torts subsequent to commencement of action at law.

Section 3339 of the Code of Civil Procedure, stating that there is but one form of civil action and that the distinction between actions at law and suits in equity has been abolished, does not mean that the essential characteristics which distinguish the two have been abolished, but merely goes to matters of form, not substance.

The court will allow a supplemental complaint to be filed in a suit in equity alleging facts occurring since the commencement of the suit which are necessary to enable the court to shape its relief to the situation existing at the time of trial. But in an action at law the entire cause of action must have existed at the time of the commencement thereof, and, with a few exceptions, subsequent damages cannot be recovered.

Thus, where twelve years have expired since the commencement of a legal action to recover for a number of tortious acts, and the plaintiff during that period has served two amended complaints, the court has no power to permit him to file a supplemental complaint bringing a large number of additional and independent torts into the case, where the Statute of Limitations has run against many of them and the damages are increased from $500,000 to $3,500,000.

APPEAL by the defendants, Charles Hubbard and others, from an order of the Supreme Court, made at the New York Special Term