In re Clement

DeAngelis, J.

I think that the error made by the holder of the certicate in his statement, that there were twelve buildings instead of' ten buildings within the 200-foot space, is immaterial, if the consents of the owners of two-thirds of the ten buildings are valid; in other words, if the consents of the owners of seven such buildings are valid. This narrows the controversy down to the question whether or not persons in possession of their houses and lots under contracts for the purchase of the same are owners thereof within the meaning of the Liquor Tax Law.

The petitioner insists that “ owner,” as used in the statute, means, and was intended to mean, “ owner in fee,” or person holding the absolute legal title to the building’. The petitioner cites Matter of Sherry v. Van Ausdall, 25 Misc. Rep. 361, and Matter of Selig v. Buckley, not reported, but said to be a decision of the Kings County Special Term held by Garrettson, J., in April, 1903.

The Van Ausdall case simply holds that a lessee of a building is not its owner.

The Buckley case is distinguishable from the case at bar. There were peculiar provisions in the contract of sale in that ease which do not appear in this case. There the court had under consideration subdivision 6 of the Liquor Tax Law requiring the consent in writing of the owner of the " premises ” on which traffic in liquor was to be carried on. The term “ premises ” includes land and buildings.

Subdivision 8 of section 17 by implication does not require that the ownership should be in fee for the reason that the same only requires the consent of the owner of the building who may have no title to the land but simply the right to maintain the building on the land and the right to remove the same.

Under - a contract for the purchase of lands, while the legal title remains in the vendor, the equitable title is in the vendee. The vendor holds the legal title in trust, for the benefit of the vendee.

The Court of Appeals has held that the vendee in such a case may fairly be described as the ‘ ‘ owner ’ ’ of the premises. Pelton v. Westchester Fire Ins. Co., 77 N. Y. 605. This was an action upon a fire insurance policy where the policy contained the provision that if the interest of the assured was any other than “ the entire unconditional and sole ownership of the premises it must be so represented to said company or that the said policy should be void.” Judge Danforth in that case quoted from the language of Lord Eldon referring to the interest of the vendee in a similar contract as follows: “If the party by the contract has become in equity the owner of the premises they are his to all intents and purposes; they are vendible as his; chargeable as his; capable of being encumbered as his; they may be devised as his; they may be assets; and they would descend to his heir. ”

It may be objected that if the vendor should regain possession of the premises by foreclosure or ejectment the annoyance of a saloon might be imposed on him without, his consent. But it may be answered that in selling the premises he took the chance. The owner can give such consent, although the building is under a long lease to a tenant, as stated in the Van Ausdall case. This might be a great embarrassment to the tenant.

Again, if the vendor had given a deed and taken back a purchase money mortgage for the full consideration, concededly the grantee under the deed would have a right to give the consent, and then if the grantor had to take back the premises by foreclosure or otherwise he would be embarrassed in the same manner as one who had taken back the premises as vendor under a contract for the sale of the premises.

I think these vendees are fairly to be considered owners.

Application denied, with costs and disbursements.