
    Antonio Verna, Respondent, v. Benny Tunick, Appellant.
    First Department,
    October 20, 1944.
    
      Julius Paull for appellant.
    
      Louis Susman for respondent.
   Per Curiam.

The complaint sets forth a contract whereby the defendant, whose liquor license had theretofore been revoked, agreed to deliver his stock of liquor to the plaintiff within one week after the making of the contract. The performance of the contract as alleged in the complaint is not conditional upon the the securing by the defendant of any license to dispose of the liquor. Under these circumstances the agreement as alleged would constitute a violation of the Alcoholic Beverage Control Law (§ 100, subd. 1, § 102, subd. 3-b) and would be unenforcible. (Carmine v. Murphy, 285 N. Y. 413.)

The order should be reversed, with twenty dollars costs and disbursements, and the motion granted, with leave to the plaintiff to serve an amended complaint within ten days after service of order with notice of entry on payment of said costs.

Martin, P. J., Untermyer, Bore and Cohn, JJ., concur; Callahan, J., dissents and votes to affirm.

Order reversed, with twenty dollars costs and disbursements, and motion granted, with leave to the plaintiff to serve an amended complaint within ten days after service of order on payment of said costs. Settle order on notice. [See post, p. 966.]  