
    Nicola Teti, Respondent, v. The West End Brewing Company, Appellant.
    Fourth Department,
    July 12, 1910.
    Landlord and tenant — lease of saloon property — provision that lease shall terminate if liquor tax certificate cannot be obtained — renewal of lease — when tenant not estopped from revoking lease.
    Where atlease of saloon property provides that it shall become void at the option of the lessee if a liquor tax certificate cannot bfe obtained, the lessee, by renewing the lease after the liquor tax certificate óf his sub-tenant has been revoked at a time when the statute permitted a new certificate to be issued to any one except the holder of the revoked certificate or persons representing him, is not estopped from terminating the lease when the statute is subsequently changed so as to prevent the issuance of anew certificate to any one for a year after the cancellation of a certificate.
    
      Appeal by the defendant, The West End Brewing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 17th day of December, 1909, upon the verdict of a jury rendered by direction of the court, and also from two orders entered in said clerk’s office on the 17th and 30th days of December, 1909, respectively, denying motions for a new trial.
    
      Henry F. Coupe and James Coupe, for the appellant.
    
      Edward Lewis, for the respondent.
   Williams, J.:

The judgment and orders should be reversed, and a new trial granted, with costs to appellant to abide event.

The action was to recover rent under a written lease. The defense was that the lease had been terminated by defendant under its terms before the rent accrued. The premises were leased for the purpose of a saloon. The lease provided that if a liquor tax certificate could not be procured for the sale ,of ale, beer and liquors at any time, then the lease should become void at the option of the lessee and that it might be terminated at the end of any year by a one month’s notice in writing of lessee’s intent so to do. The lease was dated June 22, 1906, and was for the term of ten months with the privilege of two years from April 30,1907, on giving notice on or before March first of each year. The defendant sublet the premises to one Frances Kent, who was convicted December 18, 1907, of keeping a disorderly house, and she vacated the premises January 1, 1908. The lease was continued by the required notice from April 30, 1907, to April 30, 1908, and January 23, 1908, a like notice was served that the lease would be extended from April 30, 1908, to April 30, 1909. Tbe premises were occupied by sub-tenants, Clement and Hunt, after Mrs. Kent left there, until about the 2d or 3d of May, 1908, when they became vacant. At the time Mrs. Kent was convicted her liquor tax certificate was canceled and she could not have another one for one year, but a new certificate could be issued to any one except herself, any member of her family, or .her agent, servant, employee or any other person representing her. (Liquor Tax Law [Gen. Laws, chap. 29; Laws of 1896, chap. 112], § 17, subd. 8, as amd. by Laws of 1907, chap. 345.)

This statute was changed by chapter 144 of the Laws of 1908, taking effect April twenty-first, so that a new certificate could not be •issued to any one for one year after the cancellation of the certificate. The defendant first learned of this latter statute on the 4th or 5th of May, 1908, and immediately terminated the lease and discontinued the use of the premises. When the lease was continued for the year 1908-9, the premises could be used for a saloon, for which they were leased, by any other, tenant than Mrs. Kent oilier representatives. So that such continuation did not in any way estop defendant from exercising its option to declare the lease void and to terminate it, when afterwards the law was so changed as to prevent it obtaining a certificate for that year. The decision of the trial court appears to have been based upon the assumption' that from the time Mrs. Kent was convicted no certificate could be obtained for one year, by any one, for the premises, which was not true, until April 21, 1908, when the law was amended.. Mor did the fact that the defendant had elected to take the premises for another year prevent its termination of the lease when no certificate could be obtained. That was a right it had under the lease at any time during the term of the lease. The holding over would be merely a continuance of the lease for another year, and could have nothing to do with the termination of the lease because no certificate could be procured. The judgment for the rent was improperly ordered.

All concurred.

Judgment and orders reversed and new trial ordered, with costs to appellant to abide event.  