
    Second Appellate Department,
    June Term, 1903.
    Reported, 84 App. Div. 586.
    Adam Guth, Respondent, v. Waburga Mehling, Appellant.
    Consent by a landlord, who rents premises for the sale of liquor, to art . application for a liquor tax certificate—He need not give it to an application by the lessee’s husband.
    Assuming that an owner of premises, who rent's them for use as a liquor saloon, thereby agrees to execute the consent which the Liquor Tax Law requires from the owner of the premises upon an application for a liquor tax certificate, he can only be required to execute such consent when the application for the liquor tax certificate is made by the lessee herself. He cannot be required to sign a consent to an application made by the lessee’s husband.
    Appeal by the defendant, Waburga Mehling, from a judgment of the Municipal Court of the city of New York, borough of Queens, in favor of the plaintiff, entered on the 26th day of February, 1903.
    
      Frank Mann, for the appellant.
    
      J. J. Bohmbach, for the respondent.
   Willard Bartlett, J.:

This is an action to recover rent under a written lease whereby the plaintiff demised certain premises to the defendant for use as a liquor saloon. The phraseology of the lease is: “This store to be occupied as a saloon.” The instrument also allows the defendant the use of certain fixtures specified therein, including two bars and “one four tap beer outfit, and apparatus pertaining to same complete.” These provisions fairly import that it was the intent of the lessor that the lessee should employ the premises as a place in which to carry on the liquor traffic. The defense upon the trial was that the plaintiff had refused to sign the consent which the Liquor Tax Law (Laws of 1896, chap. 112, section 17, subd. 6, as amd. by Laws of 1897, chap. 312) requires from the owner of the premises upon an application for a liquor tax certificate under that statute. This refusal, it was contended, was a breach of the lease on the part of the lessor, and relieved the lessee of all obligation thereunder.

Assuming that the lease imposed upon the plaintiff an obligation to sign the consent prescribed by the Liquor Tax Law, we think the only consent which the lessee was entitled to demand under the instrument was a consent that the liquor traffic should foe carried on there by the defendant and not by any other person. The application, however, to which the plaintiff declined to give his consent was an application not in behalf of the defendant, but in behalf of her husband. The lease did not require that the plaintiff should attach his consent to this application. The plaintiff might well have been willing to have his premises employed for carrying on the liquor traffic by the defendant, and yet have been unwilling that they should be used in the same manner by her husband. The record does not show that he refused to give the wife the statutory consent prescribed by the Liquor Tax Law, and, therefore, her defense was not established and the court properly awarded judgment to the plaintiff for the amount of rent due.

The judgment should be affirmed.

Goodrich, P. J., Hirschberg, Jenks and Hooker, JJ., concurred.

Judgment of the Municipal Court affirmed, with costs.  