Opinion
May 22, 1940.
Appeal from Supreme Court, Albany County.
Present — Hill, P.J., Crapser, Bliss, Heffernan and Schenck, JJ.
Plaintiff-appellant brought this action to have determined his claim to a refund of moneys in the hands of the Comptroller, which resulted from the surrender of a liquor license by virtue of an assignment to appellant from the licensee. The defendants are judgment creditors of the licensee and the receiver in supplementary proceedings under such judgments. The justice presiding at the Special Term held that an equitable assignment of moneys due from the liquor license refund executed before the fund came into existence is subordinate to the lien of creditors serving third-party subpoenas upon the Comptroller after the surrender of the license and the creation of the fund. ( Zartman v. First National Bank, 189 N.Y. 267; Titusville Iron Co. v. City of New York, 207 id. 203; Alchar Realty Corp. v. Meredith Restaurant, Inc., 256 App. Div. 853; Schaefer Brewing Co. v. Amsterdam Tavern, Inc., 171 Misc. 352.) Until the receipt provided by section 127 Alco. Bev. Cont. of the Alcoholic Beverage Control Law is issued to the surrendering licensee and delivered to the Comptroller, no indebtedness exists from the Comptroller to the licensee and there is no existing fund susceptible of attachment or assignment. (See, also, Brearton v. Morgan, 257 App. Div. 34.) The order appealed from should be affirmed. Order unanimously affirmed, with ten dollars costs.