I dissent. The action underlying these proceedings is equitable in character and seeks the foreclosure of an equitable lien upon a certain liquor tax certificate issued to the defendant Dennis O’Brien. The rights of the plaintiff in connection with such certificate are controlled by an assignment thereof, coupled with a power of attorney such as have become quite common since the enactment of the so-called “Batió Law.”. (Liquor Tax Law [Consol. Laws, chap. 34; Laws of 1909, chap. 39], § 8, subd. 9, added by Laws of 1910, chap. 494, as amd. by Laws of 1911, chap. 298.)*
This manner of maintaining the brewing companies’ control and dominion over numerous liquor tax certificates has frequently been attacked, but the courts have reluctantly felt compelled to sustain the validity of such transactions. (Ide v. Seibert, 151 App. Div. 900; Zobrest v. East Buffalo Brewing Co., Id. 895; Chilcott v. Broadway Brewing & Malting Co., 149 id. 931.)
The premises in question are owned by the defendant Carroll, and were by him- leased to the plaintiff, who in turn sublet same to the defendant Dennis O’Brien. Differences having arisen between defendant Dennis O’Brien and the plaintiff, this actioh was brought, as were also summary proceedings, looking to the dispossessment and removal of O’Brien from these premises.
These differences were temporarily adjusted by written contract, whereby O’Brien was left in possession pending this action, the defendant Carroll guaranteeing the payment to plaintiff of O’Brien’s rentals during the term of such contract.
This action having been brought to trial, at the conclusion of the proof the court directed judgment'of foreclosure, and decreed that the certificate in question he delivered to a referee, to be sold by him.
*790Prior to the entry of such judgment, but after its purport had been orally announced in court, in the presence of appellant, at the instigation and under the advice of appellant, the defendant Dennis O’Brien sold and transferred to the defendant Carroll all his right of possession under the sublease from plaintiff. Likewise, under appellant’s advice, Carroll then applied for and received a new liquor tax certificate authorizing traffic at this same location.
It is for instigating and advising such conduct on the part of O’Brien and .Carroll, resulting in the issuance of this new certificate, that appellant has been adjudged guilty of contempt, and from that adjudication this appeal is taken.
Prior to the taking of this appeal appellant had fully complied with the directions of the court below and stands purged of the contempt, if in fact it was such. That does not, however, deprive him of his right to appeal, nor does it leave the question here raised as purely academic.
Involving somewhat of opprobrium and professional criticism as the adjudication does, appellant has the right to clarify his record by way of appeal, if the decree was not authorized.
In reaching its conclusion the court below, as appears to me,. has overlooked the precise relation existing between a certificate authorizing traffic in liquors and the premises to which that certificate relates. The distinction in identity between these two was fully considered in People ex rel. Hope v. Masterman (156 App. Div. 450; affd., 209 N. Y. 182). This certificate evidences a personal right and privilege granted by the State. It is a license to the person, and the reference therein to the premises to be so used is for purposes of identification only. The license does not run to the premises, but remains a personal privilege.
This action seeks the foreclosure of a lien upon this personal privilege. Such privilege is a property right, and may be made the subject of a lien. Its distinction from the identity of the premises when such are used for saloon purposes is preserved by the statute which permits the holder of the certificate to file a notice of abandonment of the premises for purposes of liquor traffic without the consent of the owner of the real property. Hence, clearly, the owner of the real prop*791erty acquires no property right in the certificate standing in • the name of another, and vice versa, the holder of the certificate does not, hy virtue of his ownership thereof, acquire any interest in the real property referred to in the certificate.
With this distinction borne in mind, an examination of the complaint in this action discloses that it seeks to establish no right or restriction relating in any wise to these particular premises. It seeks the foreclosure only of a lien upon the personal right to traffic.
It is of course true that the issuance of the new certificate for the same premises has affected the marketable value of the original certificate. Because of the provisions of the “Ratio Law,” plaintiff or the purchaser upon the foreclosure sale cannot file a notice of abandonment of these premises and thereby secure a transfer of that license to other premises. Such condition, however, arises wholly from facts not involved in this litigation.
The lease which plaintiff gave to Dennis O’Brien does not purport to restrict his right to sublet further than to specify that his transferee shall take such lease charged with the equities existing in favor of plaintiff and against the defendant. Here then is an implied permission to O’Brien to transfer his .right of occupation.
Once Carroll became possessed of the right of occupation through his purchase from O’Brien, he then had standing to apply for a certificate for these premises, and the Excise Department could not lawfully withhold the same. (People ex rel. Hope v. Masterman, supra.)
It seems rather apparent that plaintiff finds itself in this position through confining its efforts wholly to the reduction of the original certificate to its possession. It had the right to abandon these premises for purposes of liquor traffic. It did not seek to do that.
Perhaps the insolvency of Dennis O’Brien and his large indebtedness to plaintiff might afford grounds for injunctive relief against, such a sale as was consummated between O’Brien and Carroll. Such a course was not adopted. In any event, the inartistic framing of the Liquor Tax Law has permitted a condition where two certificates, valid upon their face, have *792been issued for the same premises, and the question is primarily as to which holder is entitled to the use of the premises in connection with his certificate. That question is not presented in this litigation, either directly or inferentially.
The judgment rendered, and which was forecast by the court in the presence of these parties, was one which merely brought into the possession of the plaintiff the tax certificate. In no sense has the appellant invaded or attempted to invade that judgment. The situation seems very similar to that where a judgment is sought to be made ineffectual by a transfer of the property of the judgment debtor for the express purpose of defeating the judgment. This latter instance has been expressly held not - to amount to a contempt of court. (Dollard v. Koronsky, 67 Misc. Rep. 90; affd., 138 App. Div. 213; affd., 199 N. Y. 558.)
The situation is quite different from that in Greite v. Henricks (71 Hun, 11). In that case judgment was to be pronounced restraining the defendant from transferring his saloon. In direct avoidance of such a result, and for the avowed purpose of avoiding it, the defendant did transfer his saloon. In that case there was a direct invasion of the confines of the judgment. There the judgment was rendered wholly ineffectual, within the very limits adjudged.
This action sought no restraint upon the sale of the leasehold, or the issuance of another certificate to the new tenant. Hence, the acts of the appellant neither invaded, defied nor circumvented the expected decision and judgment of the court.
It seems quite clear, then, that within the provisions of section 753 of the Judiciary Law (Consol. Laws, chap. 30; Laws of 1909, chap. 35) there was no contempt legally established, and the trial court was without authority to make the order appealed from.
The advice of appellant involved no element of deceit, and at most went no further than a violation of a moral agreement. It was in conformity with the decisions of our courts as to the right of Carroll to a liquor tax certificate. It did not imperil in any sense the judgment of the court below, but left that judgment just as capable of execution and enforcement as though the transfer to Carroll had not been made.
*793If equitable or legal rights of the plaintiff have suffered, it has been through its leaving the way open to produce this result by lawful means, and its remedy lies in some appropriate action rather than in this proceeding to punish for contempt.
The order appealed from should be reversed.
De Angelis, J., concurred.
Motion to dismiss appeal denied, with ten dollars costs. Order affirmed, with ten dollars costs and disbursements.
Since amd. by Laws of 1915, chap. 654.— [Rep.