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Mudge v. West End Brewing Co.

Supreme Court of New York, Appellate Division

May 16, 1911

WILLIAM H. MUDGE, Appellant,
v.
THE WEST END BREWING COMPANY, Respondent.

Page 29

APPEAL by the plaintiff, William H. Mudge, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Schenectady on the 25th day of October, 1910, upon the decision of the court rendered after a trial at the Schenectady Trial Term before the court without a jury.

COUNSEL

W. W. Wemple, for the appellant.

Henry V. Borst and Edward D. Cutler, for the respondent.

HOUGHTON, J.:

The plaintiff is owner of premises in the city of Schenectady, which the court has found were adapted only for saloon purposes. He leased them with the furniture and fixtures to the defendant for one year from May 1, 1906, with the privilege of two years more, which privilege the defendant exercised, and paid the full rent up to the time of the expiration of the lease on April 30, 1909.

The lease contained a provision that the defendant might sublet and it did sublet to one Kuhl, the defendant, however, paying the rent. Shortly before the expiration of the lease, and in March, 1909, Kuhl was convicted of permitting gambling on the premises and his license certificate was canceled.

Page 30

In May, 1908, a law was enacted which went into effect immediately providing, among other things, that no new certificate should be issued for the carrying on of the liquor business upon premises the occupant of which had been so convicted during the term of one year from the date of conviction of the former certificate holder. (See Liquor Tax Law [Gen. Laws, chap. 29; Laws of 1896, chap. 112], § 17, subd. 8, as amd. by Laws of 1908, chaps. 144, 350; re-enacted by Liquor Tax Law [Consol. Laws, chap. 34; Laws of 1909, chap. 39],§ 15, subd. 8, as amd. by Laws of 1909, chap. 281, and since amd. by Laws of 1910, chaps. 485, 503.) The effect of this law upon the premises was that no liquor tax certificate could be issued to any occupant until April 1, 1910. The premises being only suitable for a saloon the plaintiff was unable to rent them as such and brought this action against the defendant for the loss of his rent from the time of the expiration of the lease of defendant to said period when the premises were again free to be rented for saloon purposes.

The lease contained the usual covenant that the tenant would at the expiration of the term surrender the premises in good condition, necessary wear and tear by the elements excepted; and also that the tenant would replace or pay for any articles or property belonging to the landlord, if the same were destroyed or damaged except through reasonable use.

In addition the lease contained a covenant that the defendant would indemnify and save the plaintiff harmless from any liability that might occur on account of renting the premises for the sale of intoxicating liquors, and for any liability that might arise by virtue of any civil damages because of the sale of intoxicating liquors to any person, and further provided as follows: 'And for protecting said first party against any liability that may occur on account of the provisions of the statute, section 39 of the Liquor Tax Law, or any violation that may occur on account of any requirement or provision of said Liquor Tax Law, or otherwise, and in case of any liability on account of any illegal sales of intoxicating liquors, or any liability for damages suffered under and by virtue of such law, or any law rendering said first party liable for damages under the Civil Damages Act, or otherwise, then and in that case said

Page 31

second party hereby will save said first party harmless as landlord.'

The trial resulted in a dismissal of plaintiff's complaint so far as damages for loss of rent were ...


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