Opinion
January 14, 1916.
William A. Walsh [ Jacob A. Bernstein with him on the brief], for the appellants.
Arthur I. Strang, for the respondent.
In leasing his saloon plaintiff could impose a condition against the tenant's assignment or transfer of the liquor tax certificate, together with a waiver by the tenant of the statutory right of a certificate holder to remove the traffic elsewhere.
On June 24, 1914, the Westchester County Brewing Company, with knowledge of these restrictions in the lease, acting under an assignment and power of attorney from the tenant, filed with the deputy excise commissioner for Westchester county a notice of abandonment of No. 7 Grove street, in favor of a transfer to premises at No. 17 Orawaupum street, in the village of White Plains, and so transferred the license to William Hobby, its employee, who is made a defendant herein.
This attempted notice of abandonment of traffic at No. 7 Grove street, accompanied by a transfer of the right of such traffic to another location, was a wrong to plaintiff, not to be remedied at law. ( People ex rel. Spang v. Carey, 167 App. Div. 949.) It, therefore, called for equitable relief.
These acts enabled appellants to take over this liquor traffic to a new location and stop and disable plaintiff from traffic at No. 7 Grove street. While not strictly null and void, they were subject to be canceled, and the liquor tax license reassigned in equity. All the first four conclusions of law, however, are modified so as to strike out at the ends the words, "null, void and of no effect," and substitute, "in known violation of the plaintiff's rights."
The decree, being conditional upon repayment of the tenant's indebtedness to the brewing company, with interest, fully protected the defendants' equitable rights.
The judgment is, therefore, affirmed, with costs.
JENKS, P.J., THOMAS, CARR, STAPLETON and PUTNAM, JJ., concurred.
Judgment affirmed, with costs.