
    Third Appellate Department,
    September, 1897.
    Reported. 20 App. Div. 483,
    Nathaniel Niles, Plaintiff, v. Martin Mathusa and The Hinckel Brewing Company, Defendants.
    A liquor tax certificate is a chose in action—It is assignable on demand as security for advances—A delivery not necessary—It need not be filed—What laches do not impute fraud.
    A liquor tax certificate, issued under the provisions of chapter 112 of the Laws of 1896, having, by statute, a surrender value, passing to personal representatives and being assignable upon certain terms to any corporation, association, copartnership or individual not forbidden to trafile in liquor, must be deemed to be a chose in action; as such it is assignable without delivery to a corporation which has advanced moneys to the licensee in order to enable him to procure the certificate, and such assignment need not be recorded as a chattel mortgage in order to make it valid as against creditors of the licensee.
    Where the agreement made is to assign the certificate to the corporation on demand, the demand may be made at the time that an application is made by a judgment creditor of the licensee to procure in supplementary proceedings the appointment of a receiver of his property.
    A delay of some seven months, in making a demand of the licensee that he assign the liquor tax certificate, does not establish laches, amounting to fraud as against the creditors of the licensee.
    Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.
    The submission in this case sets forth that the defendant Martin Mathusa, on the 6th day of June, 1896, obtained what is known as a $500 license under the provisions of chapter 112 of the Laws of 1896, authorizing him to traffic in and sell liquors at No. 22 Franklin street in the city of Albany, and under such license engaged in and conducted said business from the time of the issuance thereof down to the 18th of January, 1897. At the time the license was issued the Hinckel Brewing Company furnished said Mathusa the sum of $283.33 for the purpose of enabling him to obtain the same, and it was agreed that the said Hinckel Brewing Company should have a lien on the certificate and that it should be considered its property until said sum of $283.33 was paid in full. And said Mathusa thereupon executed the following' instrument:
    “Albany, N. Y., TJ. S.'A., June 6th, 1896.
    “I hereby agree to assign, transfer and set over to the Hinckel Brewing Company on demand, license numbered 13,795, taken
    
      out in my name, for and in consideration of the sum of $283.33 loaned to me for the purpose of purchasing said license,- to be the property of the Hinckel Brewing Company; and until sum of $283.33 is paid in full the license is the property of the said company.
    “MARTIN MATHUSA.”
    The plaintiff on or about the 1st day of December, 1896, obtained a judgment against the defendant Mathusa for $160 damages and costs, which at said time was duly docketed in the county of Albany; execution was issued on said judgment on the 1st of December, 1896, and returned unsatisfied. On the 2d day of December, 1896, the plaintiff procured an order in supplementary proceedings, and the defendant Mathusa was afterwards examined thereunder. On the 9th day of January, 1897, an application was duly made for the appointment of a receiver of the property of said judgment debtor. On the application Mathusa and the Hinckel Brewing Company claimed that the liquor tax certificate issued as aforesaid to Mathusa was not his property, but belonged to the Hinckel Brewing Company by virtue of the oral agreement and the assignment above set out.
    The court before whom the proceedings were had appointed a receiver of the property of Mathusa, but permitted him to transfer and deliver the liquor tax certificate in question to the Hinckel Brewing Company.
    The question submitted is whether or not, under the facts above stated and the assignment above set forth, a valid legal or equitable assignment of the liquor tax certificate was created in favor of the Hinckel Brewing Company, superior to the lien of the plaintiff by virtue of his judgment, execution and supplementary proceedings.
    
      E. A. PecJcJiam, for the plaintiff.
    
      J. Murray Downs, for the defendants.
   Putnam, J.

Under the provisions of chapter 112 of the Laws of 1896, the defendant Mathusa, by the liquor tax certificate issued to him, obtained the right to sell and traffic in liquor at his place of business in the city of Albany. By section 25 of the act, if thereafter he should choose to discontinue the traffic, he was authorized to surrender the certificate, and was thereupon entitled to receive a pro rata, amount of the tax paid for the unexpired term. If a receiver or assignee should thereafter be appointed of his property, or he should die and an executor or administrator of his estate should be appointed, such receiver, assignee, executor or administrator could surrender such certificate and receive the cash value thereof for the unexpired term; or, under certain restrictions and regulations, could continue the same business on the same premises. By section 27 of the act Mathusa could sell, assign and transfer the tax certificate to any corporation, association, copartnership or individual not forbidden to traffic in liquor under the provisions of the act. Although under this section the assignee could not continue to carry on the business of trafficking in liquor without the consent of the officer who issued the certificate, or his successor, under the provisions of sections 27 and 28 of the act, such consent could not be arbitrarily refused. If the assignee was not forbidden to traffic in liquors under the provisions of the act or under the subdivision of section 11, under which the certificare was issued, it cannot be doubted but that he had a legal right to the consent of the officer who issued the certificate, and that the giving of such consent would be directed by the court under the provisions of section 28 of the act.

Under the provisions of the statute we see no reason to doubt that the defendant Mathusa could sell and assign his interests in the liquor tax certificate in question, either absolutely or in the way of a security for the money advanced by the Hinckel Brewing Company to enable him to procure the license. Although, to enable the latter as an assignee to carry on the business under the certificate, it ivas necessary for it to obtain the consent of the officer who issued the same, yet the assignment must necessarily precede such consent. And if such consent to an assignment was' necessary when, as in this case, the assignee merely desired to surrender the certificate and recover the cash value thereof, as we have seen, it could not be arbitrarily refused, but under the provisions of section 28 the officer who issued the same could be compelled to grant it.

It cannot be doubted but that the liquor tax certificate in question conferred upon the defendant Mathusa a property right. This is conceded by the parties. It was a right not only to do business, to sell and traffic in liquors at Ms place of business in die city of Albany, but also, under certain circumstances, a rigid for him, his assigns, executors or administrators, to recover a certain sum from the State.

Under the contract between Mathusa and the State the former would not be entitled to recover of the latter the surrender value of the certificate unless he should thereafter discontinue the business of trafficking in liquors. The right given to Mathusa under the certificate to receive from the State, under certain circumstances, the pro rata amount of the tax paid for the unexpired term, was, therefore, a contingent one. We think, however, the assignment made by Mathusa to the Hinckel Brewing Company valid. It is a well-settled principle that “courts of equity will support assignments, not only of dioses in action and of contingent interests and expectancies, but also of things which have no present, actual or potential existence, but rest in mere possibility; not, indeed, as a present, positive transfer, operative in presentí, for that can only be of a thing in esse, but as a present contract, .to take effect and attach as soon as the thing comes in esse.” (Story’s Eq. Juris. § 1040; Williams et al. v. Ingersoll et al. 89 1ST. Y. 508; Harwood v. La Grange, 137 id. 538; Holmes et al. v. Hvans et al., 129 id. 140; Fairbanks v. Sargent, 104 id. 108; S. C., 117 id. 320.)

It is urged by the plaintiff that the assignment under which the Hinckel Brewing Company claimed is in the nature of a mortgage, and, not having been filed, was void as to creditors. In Booth et al. v. Kehoe et al. (71 N. Y. 341), where an instrument transferring a lease as a security for a debt was considered, Miller, J., referring to the provisions of the statutes requiring the filing of a chattel mortgage, said: “ They relate to goods and chattels which can be removed from one place to another, and the possession thereof changed, and not to chattels real, or a chose in action.” In Harrison v. Burlingame (48 Hun, 212) it was decided that the statute in relation to the filing of chattel mortgages did not apply to a mortgage of a mortgage. The same doctrine was stated in Freeman v. Rich (64 Hun, 478), of an assignment of accounts as security for a debt. (See also, Fairbanks v. Sargent, supra; Williams et al. v. Ingersoll et al., supra.)

The learned counsel for the plaintiff urges that the right of one having a liquor tax certificate to recover its surrender value is not a chose in action; that when the license was issued “ a tangible piece of property, capable of actual transfer and reduction to possession, came into existence ”; that its surrender value could not be recovered without a surrender of the certificate; it could not be assigned without a delivery; that the right of a licensee under the statute in question is so intimately associated with and dependent upon the paper or written tax certificate delivered to him by the officers of the State, that such paper itself must be deemed the property obtained by the licensee, and a chattel.

We aré unable to accede to this view. We regard the right of Mathusa, under the certificate granted to him, to be paid the pro rata amount of the sum paid on obtaining a license, as in the nature of a chose in action. In People eos rel. Stanton v. Tioga, C. P. (19 Wend. 73, 75) Oowen, J., defines a chose in action as “ not only a demand arising on contract, but also on wrong or injury to the property or person.” In 3 American and English Encyclopaedia of Law, 235, a chose in action is defined as “a right of proceeding in a court of law to procure the payment of a sum of money.” The demand of Mathusa under his certificate to a rebate arose under a contract between Mm and the State. The payment of the sum to which he was' entitled on the surrender of his certificate could be enforced by legal proceedings. It does not matter what form of action or legal proceedings he might be compelled to adopt to enforce his demand. He or his assignees, under his contract with the State, had the right to demand payment of a certain sum of money, which right he could enforce by mandamus or other legal proceedings. This right was in the nature of a chose in action, and not the less so because he or his assigns would only be entitled to exercise that right on discontinuing the sale of liquors under the license.

What Mathusa in effect assigned to the Hinchel Brewing Company was not so much the paper given the former hy the State, hut the rights derived hy him under that paper the right to traffic in liquor, and a right to a rehate on the discontinuance of that traffic. It was no more the assignment of a chattel than the assignment of the lease considered in Booth et al. v. Kehoc et al. [supra), or the assignment of the mortgage referred to in Harrison v. Burlingame [supra). In the case last cited the right of the mortgagee was derived from and dependent upon the written indenture of mortgage just as much as Mathusa’s right to traffic or to a rebate upon discontinuing such traffic was dependent upon the certificate. If the mortgagee in the case cited had sold the mortgage, a delivery of the instrument would have been necessary, and on the foreclosure and collection thereof he would have been compelled to surrender the security. As in the case cited, the mortgagee was secured certain rights under the written indenture of mortgage, so Mathusa, under the written tax certificate in question, was secured the right, under certain circumstances, to be paid the surrender value thereof.

It is claimed that the agreement to assign is conditioned upon demand; that no demand has been made and hence no lien is created. The plaintiff under his judgment, execution and the proceedings he has taken, only took such right in the certificate in question as Mathusa had at the time. Mathusa’s right was subject to the claim of the Hinckel Brewing Company under the oral and written contract admitted in the submission. A demand under said contract could be made at any time. It is made now.

It is also urged that the said company has been guilty of such laches in enforcing its lien as to show fraud. We are of opinion, under the circumstances of the case, that the mere delay of the company in enforcing its equitable rights is not enough to charge it with fraud, although it is true that such delay, under other circumstances and in connection with other facts, might tend to indicate a fraudulent intent. But there are no other circumstances shown to substantiate the charge of fraud. It is conceded that the defendant, the Hinckel Brewing Company, advanced $283.33 to enable Mathusa to obtain the certificate, and that it has not been repaid that sum. We do not feel justified in holding that the mere delay of the company in collecting the sum it had advanced is sufficient to indicate a fraudulent intent on its part, or that, under all the circumstances, the creditors of Mathusa have been injured by the action of the Hinckel Brewing Company in the matter.

We, therefore, conclude that the defendants are entitled to a judgment for the relief demanded, with costs.

. All concurred.

Judgment for defendants for relief demanded, with costs.  