Capitol Distributors Corp. v. 2131 Eighth Avenue, Inc.

Bergan and Zeller, JJ.

(dissenting). In our opinion, the money represented by the check wMch accompanied the application of 2131 Eighth Avenue, Inc., for a retail liquor license became the property of the State of New York when received by the State Liquor Authority and remitted to the Comptroller. The appellant was entitled to repayment of part of it only if its application should be denied.

This court has held that an assignment of money due from a liquor license refund, created by a surrender of a license, is subordinate to the lien of a judgment creditor serving a third-party subpoena upon the Comptroller after the surrender of the license. (Palmer v. Tremaine, 259 App. Div. 951; Atlas Adv. Agency v. Casa Cubana, 259 App. Div. 951.) An assignment of a fund which might come into existence due to a rejection of a liquor license application seems to us to be similar in nature to an assignment of a fund which might be created by a surrender of a liquor license. The lien of Capitol Distributors Corp. was superior in equity to the assignment executed in favor of Manufacturers Trust Company and the decision below was correct.

Foster, P. J., Coon and Imrie, JJ., concur in Per Curiam opinion; Bergan and Zeller, JJ., dissent and vote to affirm in a memorandum.

Order reversed, the motion of the Capitol Distributors Corp. denied and the cross motion of the Manufacturers Trust Company granted, with $10 costs and disbursements, Settle order on notice,