Page:Federal Reporter, 1st Series, Volume 10.djvu/19

 LE'tVIS i;. HITOHCOOK. 7 �allowed under the excise law of this state to hotels, taverns, or inns, only. Sesa. Laws N. Y. 1857, c. 628, §§ 2, 8, 13; Behan v. The People, 17 N. Y. 516; Schwab v. The People, 4 Hup. 520. However this may be, it is sufficient to say that the term "restaurant" has no such fixed and defini te legal meani-ng as neoesearily to exclude its being an inn in the legal sense. It may be an inn, or it may not be, according to its real character. The name by .whioh it goes is of lit- tle or no account, {C arpenter v. Taylor, 1 Hilt. 195,) and the court cannot say judicially that the place in question, though described under a videlicet as a restaiirant, may not also be an inn, as pre- viously averred. . �The description of this place under a videlicet as "a restaurant at No. 9 Chatham streefis not, therefo.re, necessarily repugnant to the previous averment that the place was an inn. The office of a videlicet is to give some additional partie ulars of time, place, or circumstance explanatory of previous statements made in general terms. A videl- icet is not allowed to render nugatory previous averments otherWise good. �In Gleason v. McVickar, 7 Cow. 43, it is said by the court, in tola- tion to allegations under a videlicet, "if they be impossible or contrary or repugnant to the preceding matter they shall be rejected as sur- plusage and void." 2 Saund. 298, note 1. Under this rule, if a restaurant could not possibly be an inn, the description under the videlicet would be rejected as repugnant to the previous statement that the place was an inn. For the reasons above stated, however, there is no necessary repugnance between the two ; and I eonsider the whole statement, taken together, as equivalent to an averment that the place referred to, though called a restaurant, was, in fact, an inn, and the complaint in this respect is, therefore, held sufficient. �On the first ground of objection, however, the demurrer must be sustained and judgment entered for the defendants, unless the plain- tiff within 20 days amend his complaint and pay the costs of the demurrer. ��� �