Koehler v. Olsen — 52 N.Y. St. Rep. 43

Majority

p. 43

David M. Koehler, Survivor, App'lt, v. Thomas Olsen, Resp't.

(Supreme Court, General Term, First Department,

Filed March 17, 1893.)

Headnote

Creditor's action—Excise license.

An excise license not being the subject of assignment or transfer without permission of the board of excise, the interest or right of the licensee therein is not property which can be reached by a creditor’s action.

Appeal from an order denying the plaintiff’s motion for the continuance of an injunction and the appointment of a receiver pendente lite.

Charles Goldzier, for app'lt.

This action is brought by a judgment creditor, after execution and return, upon a claim that there are certain equitable and other assets possessed by the judgment debtor which he refuses to apply to the satisfaction of the execution. These consist of a lease, fixtures, furniture, and license of a liquor saloon, in which the defendant is alleged to carry on business. With respect to this property, other than the license, it could be sold under the execution, and, as there is no allegation of fraudulent conveyance, or other cloud upon the title of the judgment debtor, resort to a judgment creditor’s action is entirely unnecessary.

The only question presented is, as to whether or not such an action is justified by the allegation that the debtor is the owner of an excise license, which cannot be taken upon execution, and which, therefore, it is necessary to obtain the aid of the court to reach. The solution of whether the action can be maintained for this purpose, and the relief to which the plaintiff thinks himself entitled accorded, must depend upon whether or not we consider such license property, and capable of transfer. Section 26 of chapter 401 of the Laws of 1892, provides:

“ The board of excise may * * * grant a written permission to a person or persons, who having a license from said board, * * * (2) to sell, assign or transfer such license during the term for which it was granted, and any person or persons who may thereupon carry on such business upon the licensed premises during the balance of the term of such license,” etc.

The condition precedent to any transfer, as will be seen from this language, is the written permission of the board of excise to the transfer. It is, therefore, a personal privilege, which is not the subject of assignment or transfer without such permission,

p. 44

and we agree with the view of the judge below “ that it is entirely optional with the excise commissioners to say whether they will allow a transfer of such license,’’ and that the interest or right which the debtor has in such license is not property which can be reached by a creditor’s action, as the court has no power to enforce its transfer. There being no ground alleged upon which the action itself can be maintained, the incidental provision of relief asked for pendente Ute of an injunction and receiver was properly refused.

We think, therefore, that the order should be‘affirmed, with costs.

Yah Bruht, P. J., O'Brieh and Follett, JJ., concur.