Anchor Brewing Co. v. Burns

Appellate Division of the Supreme Court of New York

Anchor Brewing Co. v. Burns

32 A.D. 272, 1 Liquor Tax Rep. 379, 52 N.Y.S. 1005, 1898 N.Y. App. Div. LEXIS 1752

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 1, 1898

StatusPublished

Cited by4 cases

This text of 32 A.D. 272 (Anchor Brewing Co. v. Burns) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Anchor Brewing Co. v. Burns, 32 A.D. 272, 1 Liquor Tax Rep. 379, 52 N.Y.S. 1005, 1898 N.Y. App. Div. LEXIS 1752 (N.Y. Ct. App. 1898).

Pincite

Opinion

Cullen, J.:

In April, 1896, the plaintiff lent the defendant .Burns $300, to enable the latter to take out a liquor tax certificate, and Burns executed an assignment to the plaintiff in the form of a chattel mortgage, whereby he sold and assigned “ the tax certificate issued to me * * * for the premises known as 48 St. Mary Street, Yonkers, N. Y., and also any , and every renewal, or subsequent license or tax certificate, which may be hereafter issued to me * * * for said premises.” This certificate expired in May, 1897. In April, 1897, the defendant Ringler & Co. lent Burns the sum of $350 to enable him to take out a new license for the year running from May, 1897, to May, 1898, and Burns assigned such certificate to the defendant Ringler & Co. as security for the loan. Burns paid neither the plaintiff nor Ringler & Co. In November, 1897, the plaintiff brought this action against the defendant Burns to recover possession of the liquor tax certificate for the year 1897 to 1898, or its Value ($150), in case return could not be had. On motion, Ringler & Co. were made parties defendant. The action was tried before the city judge of Yonkers without a jury, and from his decision in favor of the defendants this appeal is taken.

We are of the opinion that the action cannot be maintained. It is strictly an action at law in replevin, and must be considered as such, for the City Court of Yonkers has no jurisdiction of equitable actions. At the time of the execution of the mortgage by Burns to the plaintiff, the license, or tax certificate, for the year 1897 to 1898 was not in existence. The mortgage did not, at the time of its execution, create a lien on the certificate, because that was not in esse at most, it operated as a contract to give a lien. This is effectual in equity, as between the parties, when the property comes into existence and no rights of creditors or innocent third parties intervene. (Kribbs v. Alford, 120 N. Y. 519; Deeley v. Dwight, 132 id. 59.) We do not understand, however, that such a contract gives any legal title or lien, cognizable in a court of law, as the foundation of a cause of action (Hale v. Omaha National Bank, 49 N. Y. 626); though, unquestionably, it could be set up as a defense, since equitable defenses are, under the present system, admissible in legal actions. (McCaffrey v. Woodin, 65 N. Y. 459.) In Hale v. Omaha National Bank, as in the present case, the lien [274]*274sought to be enforced was on subsequently acquired property. . There Judge Allen said : “ Yery likely the action cannot be maintained as a common-law action of trover, although it is not necessary to pass upon that question. That action can only be brought by one having the legal title, either as a special or a general owner, one having the legal right to the possession.” But there is a further difficulty in .this case. The tax certificate is not a chattel but a chose inaction. (Niles v. Mathusa, 20 App. Div, 483.) The recovery of the piece of paper on which the license is written would be of no advantage to the plaintiff. In its complaint it alleges a demand on the defendant Burns for an assignment of the .certificate and Burns’ refusal. The City Court of Yonkers has no power to compel Burns to execute any assignment. Therefore, even if an action of replevin would lie in the case of an equitable lien on a chattel, it cannot be maintained in the case of a chose in action.

We are further of opinion that the decision of the city judge was correct on the merits. Equity will only enforce a lien on -subsequently acquired property, where superior equities of third parties have not intervened. In this case as Ringler & Co. advanced the very money which paid for the tax license or certificate in suit, their equity was paramount to that of the plaintiff’s;

The judgment appealed from should be affirmed, with costs.

, All concurred, except Hatch, J., absent.

Judgment affirmed, with costs.

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Cullen, J.:

In April, 1896, the plaintiff lent the defendant .Burns $300, to enable the latter to take out a liquor tax certificate, and Burns executed an assignment to the plaintiff in the form of a chattel mortgage, whereby he sold and assigned “ the tax certificate issued to me * * * for the premises known as 48 St. Mary Street, Yonkers, N. Y., and also any , and every renewal, or subsequent license or tax certificate, which may be hereafter issued to me * * * for said premises.” This certificate expired in May, 1897. In April, 1897, the defendant Ringler & Co. lent Burns the sum of $350 to enable him to take out a new license for the year running from May, 1897, to May, 1898, and Burns assigned such certificate to the defendant Ringler & Co. as security for the loan. Burns paid neither the plaintiff nor Ringler & Co. In November, 1897, the plaintiff brought this action against the defendant Burns to recover possession of the liquor tax certificate for the year 1897 to 1898, or its Value ($150), in case return could not be had. On motion, Ringler & Co. were made parties defendant. The action was tried before the city judge of Yonkers without a jury, and from his decision in favor of the defendants this appeal is taken.

We are of the opinion that the action cannot be maintained. It is strictly an action at law in replevin, and must be considered as such, for the City Court of Yonkers has no jurisdiction of equitable actions. At the time of the execution of the mortgage by Burns to the plaintiff, the license, or tax certificate, for the year 1897 to 1898 was not in existence. The mortgage did not, at the time of its execution, create a lien on the certificate, because that was not in esse at most, it operated as a contract to give a lien. This is effectual in equity, as between the parties, when the property comes into existence and no rights of creditors or innocent third parties intervene. (Kribbs v. Alford, 120 N. Y. 519; Deeley v. Dwight, 132 id. 59.) We do not understand, however, that such a contract gives any legal title or lien, cognizable in a court of law, as the foundation of a cause of action (Hale v. Omaha National Bank, 49 N. Y. 626); though, unquestionably, it could be set up as a defense, since equitable defenses are, under the present system, admissible in legal actions. (McCaffrey v. Woodin, 65 N. Y. 459.) In Hale v. Omaha National Bank, as in the present case, the lien [274]*274sought to be enforced was on subsequently acquired property. . There Judge Allen said : “ Yery likely the action cannot be maintained as a common-law action of trover, although it is not necessary to pass upon that question. That action can only be brought by one having the legal title, either as a special or a general owner, one having the legal right to the possession.” But there is a further difficulty in .this case. The tax certificate is not a chattel but a chose inaction. (Niles v. Mathusa, 20 App. Div, 483.) The recovery of the piece of paper on which the license is written would be of no advantage to the plaintiff. In its complaint it alleges a demand on the defendant Burns for an assignment of the .certificate and Burns’ refusal. The City Court of Yonkers has no power to compel Burns to execute any assignment. Therefore, even if an action of replevin would lie in the case of an equitable lien on a chattel, it cannot be maintained in the case of a chose in action.

We are further of opinion that the decision of the city judge was correct on the merits. Equity will only enforce a lien on -subsequently acquired property, where superior equities of third parties have not intervened. In this case as Ringler & Co. advanced the very money which paid for the tax license or certificate in suit, their equity was paramount to that of the plaintiff’s;

The judgment appealed from should be affirmed, with costs.

, All concurred, except Hatch, J., absent.

Judgment affirmed, with costs.

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Bluebook (online)

32 A.D. 272, 1 Liquor Tax Rep. 379, 52 N.Y.S. 1005, 1898 N.Y. App. Div. LEXIS 1752, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anchor-brewing-co-v-burns-nyappdiv-1898.

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