2 Liquor Tax Rep. 207 | City of New York Municipal Court | 1899
The complaint alleges a cause of action to recover $460.66 and interest from October 1, 1897, upon a bond made by both defendants to plaintiff, dated September 15, 1897. The condition of the bond is as follows: “ Now, the condition of this obligation is such that if the above named Marks L. Frank shall lose any sum or sums of money by reason of the title to certain goods and chattels vested in him by a certain delivery thereof, and a bill of sale executed simultaneously therewith on the 15th day of September, 1897, by John S. Forgotson, one of the parties to these presents, up to the amount of $850, or any part thereof, that for such sum of money as shall be lost by said Frank these presents shall be in full force.” The bill of sale referred to is annexed to the complaifit, which transfers one oak sideboard and all the other goods, chattels, etc., located in the house No. 14 West Thirty-first street, in the city of New York, and more specifically designated in the schedule thereto annexed, “ together with all right, title and interest in and to the liquor tax certificate now issued by the State excise authorities for the sale of liquors, etc., in said premises.” The schedule annexed to the bill of sale specifies one liquor tax certificate No. .3,866, dated May 4, 1897. The complaint further alleges that the liquor tax certificate referred to was issued to the Imperial Club, or to one J. W. Powers or Eugene Loeb, or both of them, and authorizing the dispensing of liquors, etc., at said place No. 14
To this complaint the defendant, Etta Forgotson, demurred, on the ground that it does not state facts sufficient to constitute a cause of action. By this demurrer all allegations of the complaint are admitted as true. The liquor tax certificate is property. Matter of Hilliard, 25 App. Div. 222, affirmed 155 N. Y. 702; Matter of Lyman, 160 Id. 100. The appellant maintains that the condition of said bond is meaningless. The bond reads (by omitting a few words unimportant for the decision of the question involved) : “Now the condition of this obligation is such, that if the above named Marks L. Frank shall lose any sum or sums of money by reason of the title to certain goods, chattels, vested in him by a bill of sale executed simultaneously therewith, on the 15th day of September, 1897, by John S. Forgotson, one of the parties to these presents, up to the amount of $850, or any part thereof, that for such sum of money as shall be lost by said Frank, these presents shall be in full force and effect, otherwise they become null and void.” The “title to certain goods and chattels” means the right to the property and the right of possession thereof, in short, the ownership thereof, and the bond provides that if plaintiff loses any money by reason of not acquiring complete title or ownership thereof by virtue of said bill of sale, then, in that event and to the amount of his loss, is this bond in force and effect; and that was the evident intent of the contracting parties. The fact that the bill of sale and bond were simultaneously executed and delivered confirms this intent. The bill of sale does not purport to convey his (Forgotson’s) right, title and interest in and to the liquor tax certificate, but all right, title and interest therein, and in and by the bill of sale Forgotson expressly warranted the sale. Scranton v. Clark, 39 N. Y. 220. Forgotson undertook thereby to transfer all the right, title and interest that existed in that piece of property. The presumption is in favor of the legality of the contracts, to wit, bill of sale and bond involved in this action. An agreement will not be adjudged to be illegal where it is capable of a construction which will uphold it and make it valid. Lorillard v. Clyde, 86 N. Y. 384-387. A complaint will be deemed sufficient whenever the requisite allegations can be fairly gathered from all the averments, though the statement of them may be argumentative. It will be held
Fitzsimmons, Ch. J., concurs.
Interlocutory judgment affirmed, with costs, with leave to defendant to answer within six days upon payment of costs.
