Opinion
March 15, 1943.
Present — Close, P.J., Carswell, Adel, Taylor and Lewis, JJ.
Action in equity to determine, as between an assignee and judgment creditors, the title to moneys in the hands of the State Comptroller, which moneys constitute a refund for a surrendered liquor license, under section 127, Alcoholic Beverage Control Law. Order modified on the law by striking out all the decretal paragraphs except those relating to the American Holding Corporation, and by adding a paragraph providing that the motion for judgment against plaintiff on the pleadings is denied. As thus modified, the order is unanimously affirmed, with ten dollars costs and disbursements to the appellant against respondents H. Schrier, Inc., and H.S. S. Realty Corp. to abide the event. The portions of the order struck out are as follows: The first, third, fourth, sixth, seventh, tenth, eleventh, and twelfth paragraphs in their entirety, and the following words from the ninth paragraph, "plaintiff, Arthur Ryan, as alleged assignee, and the * * *." At the time of the assignments to plaintiff no liens had attached to the prospective refund. The material question in this action is as to the priority rights of the parties and is to be determined mainly by the bona fides of the assignments. After the assignments were made, the assignor had no title to the refund money to which liens of subsequently-recovered judgments could attach. (See 6 Corpus Juris Secundum 1149, § 92; Bloomer v. Offerman, 247 App. Div. 860; Alchar Realty Corp. v. Meredith Restaurant, Inc., 256 App. Div. 853.) The plaintiff is not entitled to judgment in the absence of formal proof of the material allegations of the complaint which have been denied in the answer of H. Schrier, Inc., and H.S. S. Realty Corp.