
    Ciocca-Lombardi Wine Company, Respondent, v. Enrico Fucini, Appellant.
    
      Contract — sale — sale of wine for lawful use and under government -permit — action to recover for breach of contract — defense that purchaser was unable to obtain permit to purchase and transport urine.
    
    
      Ciocca-Lombardi Wine Co. v. Fucini, 204 App. Div. 392, affirmed.
    (Argued May 29, 1923;
    decided June 12, 1923.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered February 9, 1923, which reversed an order of Special Term denying a motion to strike out a defense and counterclaim set up in the answer and granted said motion. The action was to recover upon a contract for the sale of wine “ for lawful use and under government permit.” The defense was that the wines in question were intoxicating liquors; that at all times referred to in the complaint and in the answers the National Prohibition Act and the regulations duly made thereunder by the secretary of the treasury and the national prohibition commissioner were in full force and effect; that it was therein provided that no wine or intoxicating liquors could be sold, purchased or transported unless permits for such sale, purchase and disposition had been first granted and allowed; that the appellant repeatedly made application to the national prohibition commissioner and his duly appointed subordinates, between the date of the signature of the contract and the 1st day of December, 1920, for permit to purchase and transport the wine referred to in the contract, and continued such efforts for a reasonable time after the 1st day of December, 1920, and made all due and diligent and reasonable efforts to obtain such permit and permits, but that the national prohibition commissioner and his duly appointed subordinates during all of said time refused and continued to refuse to grant or issue to the defendant said permit or permits to purchase or transport any or all of said wine, which refusal was not due to any fault, omission or any act whatsoever of defendant. The counterclaim repeated the foregoing allegations, referred to the deposit which had been made and the refusal to issue the permits, and demanded judgment for the return of the deposit on the theory of failure of consideration.
    The following questions were certified:
    
      “ (1) Is separate defense in the answer sufficient in law upon the face thereof?
    
      “ (2) Does the counterclaim contained in the answer state facts sufficient to constitute a cause of action? ”
    
    
      
      Samuel F. Frank and Arthur W. Weil for appellant.
    
      Meyer Kraushaar and Emanuel Celler for respondent.
   Order affirmed, with, costs; both questions certified answered in the negative; no opinion.

Concur: Hiscock, Ch. J., Hogan, Pound, McLaughlin and Andrews, JJ.; Cardozo, J., dissents only as to question No. 1. Dissenting: Crane, J.  