
    John W. Zobrest, Plaintiff, v. The East Buffalo Brewing Co. et al., Defendants.
    (Supreme Court, Erie Equity Term,
    June, 1912.)
    Stay—pending determination of an appeal—injunction.
    Where, in an equity action to determine the ownership of a liquor tax certificate issued to plaintiff and assigned to defendant, it is undisputed that plaintiff is and for many years has been the owner of the premises where the liquor business was carried on by him, and that he owed defendant nothing, the court may grant an order staying all proceedings of defendant pending the determination of an appeal to the Court of Appeals from an affirmance by the Appellate Division of a judgment against plaintiff, the bond given to indemnify the defendant upon the granting of the injunction standing, the plaintiff being personally responsible.
    Action in equity to determine ownership of a liquor tax certificate issued hy the state excise department to plaintiff.
    George A. Keating, for plaintiff.
    Irving W. Cole, for defendants.
   Poolet, J.

This is an equity action to determine the ownership of a liquor tax certificate * issued by the state excise department to plaintiff, and by him assigned to the brewing company under an agreement in writing, the consideration for which, the plaintiff contends, has been fully satisfied.

An injunction was granted restraining the brewing company from interfering with the certificate, and plaintiff gave a sufficient bond to indemnify the brewing company in the event of damage suffered, should the action be finally determined adversely to the plaintiff.

Judgment was rendered against the plaintiff, and on appeal to the Appellate Division the judgment was affirmed without opinion, McLennan,.P. J., dissenting. The plaintiff has appealed to the Court of Appeals, and given the usual undertaking for costs, and now moves for an order staying all proceedings of the defendants pending the hearing and determination of the appeal to the Court of Appeals.

It appears, without dispute, that plaintiff is, and for many years has been, the owner of the premises where the business is, and for many years has been, carried on by him; that he had paid the brewing company all moneys advanced to him; and that he owed the brewing company no money.

Of course this certificate, which is the subject of the controversy, will expire before the appeal to the Court of Appeals can be argued, but the renewal certificate is covered by the agreement which, if finally found valid and binding by the Court of Appeals, will be vested in the brewing company. The bond for indemnity still stands, and the plaintiff is personally responsible.

Should the certificate be delivered to the brewing company, the plaintiff would be put out of business, and, in the circumstances here, could not use his property for the business that he has conducted there for many years.

Plaintiff should not be deprived of his business unless and until it is finally determined that his contention cannot be sustained.

On the other hand, the plaintiff should not dispose of-the certificate or any renewal of it, or in any way hypothecate it, so that upon the final determination, if favorable to the brewing company, it shall be delivered intact, according to the decree.

Ordered accordingly.  