Clement v. Scherno

New York Supreme Court

Clement v. Scherno

71 Misc. 6, 129 N.Y.S. 766

DecidedFebruary 15, 1911

StatusPublished

This text of 71 Misc. 6 (Clement v. Scherno) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Clement v. Scherno, 71 Misc. 6, 129 N.Y.S. 766 (N.Y. Super. Ct. 1911).

Pincite

Opinion

Kellogg, H. T., J.

The complaint states a cause of action for the breach of a covenant contained in a liquor tax bond that the certificate holder would not suffer or permit the premises to become disorderly. The sole defense made is that the • premises for which the certificate was issued formed a portion of the territory owned by the United ■States, and that for such territory no certificate could legally be issued, and that no bond in relation to the use thereof could be enforceable. It seems to me that the defendants are estopped from making this defense. The statement of the certificate holder was to the effect that the premises were owned by his wife, and the defendant surety company guaranteed the truth of the statement. Both defendants, therefore, made a material statement in reliance upon the truth of which the certificate was granted. The defendants cannot now be heard to make a claim in their own behalf that the statement so made by them was false.

Judgment for plaintiff.

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Kellogg, H. T., J.

The complaint states a cause of action for the breach of a covenant contained in a liquor tax bond that the certificate holder would not suffer or permit the premises to become disorderly. The sole defense made is that the • premises for which the certificate was issued formed a portion of the territory owned by the United ■States, and that for such territory no certificate could legally be issued, and that no bond in relation to the use thereof could be enforceable. It seems to me that the defendants are estopped from making this defense. The statement of the certificate holder was to the effect that the premises were owned by his wife, and the defendant surety company guaranteed the truth of the statement. Both defendants, therefore, made a material statement in reliance upon the truth of which the certificate was granted. The defendants cannot now be heard to make a claim in their own behalf that the statement so made by them was false.

Judgment for plaintiff.

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Bluebook (online)

71 Misc. 6, 129 N.Y.S. 766, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clement-v-scherno-nysupct-1911.