George F. Fitzgerald, Respondent, v. Westchester County Brewing Company and William Hobby, Appellants

George F. Fitzgerald, Respondent, v. Westchester County Brewing Company and William Hobby, Appellants. Second Department, January 14, 1916. Intoxicating liquors—liquor tax certificate—landlord and tenant — lease forbidding assignment of certificate or abandonment of premises— equity — injunctive relief. The lessor of a saloon may impose as a condition that his tenant shall not assign or transfer the liquor tax certificate and may require him to waive his statutory right as a certificate holder to remove the business elsewhere. Hence, where a lease embodies the condition and waiver aforesaid, equity will enjoin an assignee of the tenant who had knowledge of the restrictions in the lease from transferring the liquor tax certificate to another person engaged in the traffic of liquors in another locality or from abandoning the traffic of liquors on the plaintiff’s premises. As there is no adequate legal remedy for the wrongs aforesaid the plaintiff is entitled to equitable relief. The equitable rights of the defendants in such suit are fully protected when the decree is made conditional upon the repayment of the tenant’s indebtedness to the assignee. Appeal by the defendants, Westchester County Brewing Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 9th day of December, 1914, upon the decision of the court after a trial at the Westchester Special Term. William A. Walsh [ Jacob A. Bernstein with him on the brief], for the appellants. Arthur I. Strang, for the respondent. [MAJORITY — Per Curiam:] Per Curiam: 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.