Shedlinsky v. Budweiser Brewing Co.

45 N.Y.S. 174 | N.Y. App. Div. | 1897

Parker, J.:

The plaintiff leased certain premises situated within 200 feet of a school building, in the city of New York, to the defendant for a term of three years from May 1,1895, to. be used as a liquor saloon.

The lease contained the following clause, “ the said party of the second part covenants and agrees to use the said rented premises only for a liquor saloon.” Defendant had no license to carry on the saloon business at this place, and urges that this contract of leasing was for an illegal purpose, and, therefore, an action will not lie to enforce it.

If it were not possible at the date of this contract to conduct a liquor saloon lawfully in these premises, then defendant’s position is impregnable.

But we are not advised by this record that'such was the fact.

The statute in force at -the time the lease was executed (Laws of 1892, chap. 401, § 43, as amended by Laws.of 1893, chap. 480) provided, in effect, that no new license should be granted within 200 feet of a building occupied as church or a schoolhouse, but the board of excise may, in its discretion, grant permission to transfer a license from premises within the limits above mentioned to other premises ■within said limits, but at a greater distance from the principal entrance of a church or school.

It does not appear that a license could not have been obtained for these premises in the way pointed out by statute. And the law will not presume that the parties to this contract intended to have an unlawful business carried on, when a lawful business was possible.

It follows that the defendant failed to establish that the parties contracted for the conduct of a business in violation of the statute.

The judgment should be affirmed, with costs.

Van Brunt, P. J., Bumsey, Williams and Patterson, JJ., concurred.

Judgment affirmed, with costs.