
    Second Appellate Department,
    October, 1897.
    Reported. 20 App. Dlv. 566.
    Richard A. McNeeley, Respondent, v. John Welz and Charles Zerweck, Appellants, Impleaded with Henry W. Michell and Others.
    Liquor Tax Law of 1896—A liquor tax certificate can not be levied upon under an execution—Construction of a chattel mortgage of a license and Its "renewal”—What will be construed to be an action to foreclose it—Costs against a defendant claiming to have an interest.
    A liquor tax certificate issued under chapter 112 of the laws of 1896, and a surrender receipt therefor are, neither of them, evidences of debt upon which the Code of Civil Procedure, section 1411, authorizes an execution to be levied.
    A chattel mortgage given May 15, 1896, which covers “the right of the mortgagor to a license to sell beer or to a renewal thereof,” embraces a liquor tax certificate subsequently issued in renewal of the license under chapter 112 of the Laws of 1896.
    A complaint in an action brought to procure a determination as to the mortgagee’s rights to the amount of the rebate on the surrender of the liquor tax certificate, considered to be an action to foreclose the mortgage and consequently to bring the subject-matter of the action within equitable cognizance.
    What is sufficient to show that a defendant claimed an interest in the subject of the action, and consequently to entitle the plaintiff to costs as against such defendant.
    Appeal by the defendants, John Welz and Charles Zerweck, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 1.6th day of March, 1897, upon the decision of the court rendered after a trial at the Kings County Special Term.
    The complaint in this action asked as relief that the plaintiff be adjudged to be entitled to the rebate upon the liquor tax license certificate which is referred to in the opinion; that the defendants be declared to have no title thereto, and that the plaintiff have judgment for the amount thereof against the defendant Michell.
    if. Hallheimer, for the appellants.
    
      George D. Armstrong and B. D. Benedict, for the respondent.
   Willard Bartlett, J.

On May 15, 1896, Emil Schiellein, who was then engaged in the business of selling liquor at a .place called Duffle Bar, in Kings county, executed to the plaintiff a chattel mortgage to secure the repayment of a cash loan of $2,200. This mortgage covered furniture, household goods and other personal property used by the plaintiff in his business, and also all his right, title and interest “ to a license to sell beer or to a renewal .thereof.” Schiellein subsequently, on June 23, 1896, obtained a liquor tax certificate from Henry W." Michell, the special deputy commissioner of excise for Kings county, under the new Liquor Tax Law. (Chap. 112, Laws of 1896.) He retained this certificate until October 31, 1896, when he surrendered it to the special deputy commissioner, from whom there then became due to Schiellein a rebate of $325, but not having the money with which then to pay this rebate, that officer gave him an instrument known as a surrender receipt, stating that the sum of $325 was payable on the surrender certificate out of any excise money thereafter received from the city of Brooklyn or county of Kings, or in any other manner thereafter legalized. No money has yet been paid on the surrender.

Meantime the appellants Welz and Zerweck had sued Schiellein upon a promissory note for $800, and had obtained judgment, against him upon which an execution was issued, under which a deputy sheriff of Kings county, on October 15, 1896, assumed to levy upon Schiellein’s tax certificate and its surrender value. This he did by serving upon Mr. Michell, the special deputy commissioner of excise, a notice in writing informing that officer that he had levied upon all the leviable right, title and interest which Emil Schiellein had on October 1, 1896, or at any time thereafter, in whose hands soever the same might be, in and to a liquor tax certificate then in the commissioner’s possession. The deputy sheriff did not see the liquor tax certificate at the time in „ the commissioner’s office, nor was it there in fact, nor did he see any money purporting to belong to Schiellein. The certificate had not yet in fact been surrendered.

Upon the oral argument we intimated a pretty strong opinion that a liquor tax certificate, issued under chapter 112 of the Laws of 1896, was not subject to levy under execution. To this opinion we adhere. Such a certificate does not fall within any class of those evidences of debt upon which the Code authorizes an execution to be levied. (Code Civ. Proc. '§ 1411.)

That the liquor tax certificate was embraced within the terms of Schiellein’s mortgage to the plaintiff we think is equally plain. As the learned trial judge suggests, the defendant Schiellein, by referring in the mortgage to a renewal of his license, must have had in contemplation its renewal in the only manner possible under the new law, that is, by taking out a liquor tax certificate.

We find no difficulty, therefore, in sustaining the conclusions of the court below to the effect that the appellants took nothing by their attempted levy upon the liquor tax certificate, and that the plaintiff under his mortgage became entitled to the $325 rebate thereon.

It is not so clear that the plaintiff was entitled to have his rights to this fund determined in equity instead of resorting to a suit at law; but, as the real points of difference between the litigants have been fully and fairly tried out and decided, the judgment should be upheld if there be any reasonable view upon which the equitable jurisdiction of the court can be asserted. We think the action may be regarded as a suit to foreclose the plaintiff’s mortgage so far as it related to the liquor tax certificate, and hence as cognizable in equity. Thus viewed, the appellants were proper parties defendant, for the proof that the deputy sheriff attempted to levy on the certificate by direction of their attorney is sufficient to show that they really claimed an interest in the rebate as alleged in the complaint. Indeed, the only denial of this allegation is a statement in the answer that they have no knowledge or information sufficient to form a belief as to the matter, which statement is incredible. A defendant must know whether he makes or does not make a particular claim. Inasmuch, therefore, as the appellants have evidently been persistent in their efforts to obtain a fund to which the plaintiff has established his right, we think the award of costs against them should stand as well as the rest of the judgment.

All concurred.

Judgment affirmed, with costs.  