
    Mary Kane, Plaintiff, v. John T. Johnston, Defendant.
    1. In computing the damages to be awarded to the plaintiff for an injury to his tenement and business by the deSn'dant, a loss of anticipated profits arising from an illegal business cannot be included.
    2. If it appears that the plaintiff was selling liquors, the burden is upon him to show that he had a license, if he would recover for such loss of profits in that business.
    3. Where the plaintiff was a tenant having an unexpired term of only one month, and it appeared that she had no license; Held, that there was no presumption that she would have obtained a license before the expiration of the term.
    4. In such case it is error for the Judge to refuse the defendant’s request to charge the Jury that the plaintiff is not entitled to recover for loss of profits from sale of liquor.
    (Before Bosworth, Oh. J., Monorief, White and Barbour, J. J.)
    Heard, January 18, 1862;
    decided, March 15, 1862.
    The exceptions taken at the trial of this cause, and the defendant’s motion for a new trial, were directed to be heard, in the first instance, at General Term.
    The action was brought by the plaintiff, a widow, who occupied a building in Pearl street, in the City of Hew York, as a boarding house and grocery, to recover damages sustained by her by the fall of a warehouse near by, which it was alleged was owned and built by the defendant, and the fall of which was alleged to have been caused by negligence in its construction and use.
    The cause was tried on the 4th of November, 1861, before Mr. Justice Robertsok and a Jury; and the plaintiff recovered a verdict for $75. The material parts of the charge, and the exceptions, appear in the opinion of the Court.
    
      Hamilton Odell, for the defendant,
    insisted that a motion for a nonsuit, which had been made at the trial, should have been granted, and that there was no evidence to sustain the verdict; and also reviewed the charge, and refusals of requests to charge, and argued that for error in these the verdict should be set aside.
    
      Solomon B. Noble, for plaintiff.
    I. The defendant cannot review, under the 265th section of the Code, pure questions of fact.
    If the evidence is sought to be reviewed, and the finding of facts considered, either with or without the questions of law, a case and motion for a new trial at Special Term are the proper proceedings. (Morgan v. Bruce, 1 Code R., [N. S.,] 365; Ogden v. Coddington, 2 E. D. Smith, 317; Gilbert v. Beach, 16 N. Y. R., 606; Cobb v. Cornish, 16 N. Y.„R., 602; Thurber v. Townsend, 22 N. Y. R., 517; Morange v. Morris, 12 Abb. Pr. R., 164.)
    II. The Court was right in denying the motion to dismiss the complaint.
    III. The exceptions taken to the charge of the Judge cannot be sustained.
   Bosworth, Ch. J.

The Judge, in his charge upon the question of damages, speaking of the plaintiff’s business which had been interrupted or broken up, used this language, viz.: “It appears she was in the habit of keeping boarders, selling liquors, groceries and vegetables, which were left in a condition to be destroyed; the liquor she sold there, by which she made money, it is said, she sold against the law, and that you cannot take into calculation • an illegal traffic; upon that point the defendant is bound to make out that she was selling liquor without a license, in order to deprive her; whether she was or not, it is for you to say from the testimony.”

The defendant asked the Judge to charge, that the plaintiff is not entitled to recover for loss of profits from sale of liquor. The Judge declined and the defendant excepted.

The only evidence in respect to her having a license is her own testimony in these words, viz: “I had a license to sell liquor; that is, my husband had.” The plaintiff was a widow. ♦

If the rule be, as the Judge seems to have stated it, that -if the plaintiff was selling liquor without a license, she could not recover for a loss of profits in that business, then it follows that the defendant was entitled to the instruction which he asked the Judge to give. It appeared by her own testimony that she had no license.

But the burden of proof is on the plaintiff; to show that she had a license. (Ehel v. Smith, 3 Caines R., 187; Griffith v. Wells, 3 Denio, 226.)

Failing to show that, the presumption is, that her traffic in liquors was illegal, and for the loss of profits caused by interrupting a business of that character, she could not recover. •

The actual value of the leasehold interest, if entirely destroyed, or the amount of the loss, if the injury was partial, should have been allowed: But it is one thing to allow the value of premises, whether that value consists, in part, of the advantages of its location, or of its adaptation to a particular branch of business, and quite another to allow for a loss of anticipated profits resulting from the interruption of a business in itself illegal.

The Judge charged that she was only entitled to be compensated for injury to her business “ for the time she was actually entitled to remain in the house, and it appears that her contract or legal right was for a month.’’

There can be no presumption that she would have obtained a license for a month, or for a year, and have paid the necessary license fee, in order to carry on, legally, for a month, a business which theretofore had been conducted contrary to law. And for the profits lost, between the time of the injury and some day when it may be conjectured she could and would have procured a license, it is quite clear there can be no recovery.

Even if it can be assumed or found that the premises had something of value attached to them, which may be called good will, it may be conceded that she may be allowed the value of her premises, including as a part of it the worth of this good will; and yet it does not follow that she may recover for the loss of profits which she might have made from transacting an illegal business.

An “ exception is taken to the refusal of the Judge to charge, that the plaintiff is not entitled to recover for loss of profits from, sale of liquor.”

The defendant was entitled to this instruction, as it appeared from the testimony of the plaintiff herself, that she was selling without a license. She could not have recovered the value of anything sold in the course of this business, from those who dealt with her, nor can she recover from a third person for a loss of profits anticipated from it, caused by the negligence of such third person.

The recovery is for so small a sum that I should be disposed to refuse a new trial, were it not, that in my view of the law, the verdict cannot be sustained, by reason of the refusal of the Judge to charge as requested.

The other Justices who heard the argument concurring, except Baeboub, J., who dissented, the verdict was set aside, and a new trial ordered, with costs to abide the event.  