People v. Korn

It was conceded by the defendant upon the trial that the defendant was the proprietor and owner of the restaurant, and that he had no liquor tax certificate.

The evidence conclusively showed that one of the waiters at this restaurant served lager beer to the People’s witnesses, and that such waiter was the defendant’s employee. The defendant denied that the lager beer served was sold, and that he was answerable for the act of his servant. The defense was that if it appeared that a customer in a licensed restaurant employs one of the waiters to go out as his agent, and purchase liquor in a licensed place, there is no sale to the customer in the restaurant either by the waiter or by the proprietor.

In the first place, the defendant’s own testimony shows that in *525this case the waiter advanced the money with which to purchase the liquor ordered by the special agent, because he knew him very well. However, there would have been no agency, even if the waiter had required pay in advance. By no mental operation or reserve can a waiter constitute himself a customer’s agent. A restaurant keeper cannot avoid the necessity of paying an excise tax, if he desires to have his waiters serve liquor to his, not their, customers, by the mere subterfuge of an agency between his waiters and his customers. (Sternaman v. Met. L. Ins. Co. 170 N. Y. 131.)

It might as well be claimed that where each waiter in a restaurant is charged with the price of all food obtained by him to serve a customer, and is held to account at the end of the day, the waiter is not the employee of the proprietor, but is the employee of each customer. If the court overstated the express concessions of counsel, the defendant was not prejudiced, because nothing was stated as conceded which was not either expressly conceded or established by defendant’s evidence. (People v. Miller, 169 N. Y. 339.)

Judgment affirmed. ,

Ho opinion.