Atlas Advertising Agency, Inc. v. Casa Cubana, Inc.

259 A.D. 951, 19 N.Y.S.2d 900, 1940 N.Y. App. Div. LEXIS 7405

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 22, 1940
• Status: Published

Opinion

Appeal from an order of the Special Term of the Supreme Court, Albany county, which order directed the Comptroller of the Stake of New York to pay to the receiver of the judgment debtor herein on motion of Atlas Advertising Agency, Inc., judgment creditor-respondent herein, certain moneys in his possession, being the amount of a refund of a surrendered liquor license. There is no dispute as to the facts. Upon a motion under section 796 of the Civil Practice Act the court determined the question of law and held that the lien of the defendant Atlas Advertising Agency, Inc., judgment creditor-respondent, was superior in equity to that of Palmer, claimantassignee-appellant. The justice presiding at Special Term held upon the authority of Zartman v. First National Bank (189 N. Y. 267) and Titusville Iron Co. v. City of New York (207 id. 203) that an equitable assignment of moneys due from a liquor license refund executed before the fund came into existence is subordinate to the lien of creditors serving third-party subpoenas upon the Comptroller after the surrender of the license and the creation of the fund. (See, also, Alchar Realty Corp. v. Meredith Restaurant, Inc., 256 App. Div. 853; Schaefer Brewing Co. v. Amsterdam Tavern, Inc., 171 Misc. 352; Alcoholic Beverage Control Law, § 127.) The order appealed from should be affirmed. Order unanimously affirmed, with ten dollars costs. Present — Hill, P. J., Crapser, Bliss, Heffeman and Sehenck, JJ.