(DOWNLOAD) "Ernest E. Smith v. Timothy C. Pope Et Al." by Supreme Court of New York " eBook PDF Kindle ePub Free
eBook details
- Title: Ernest E. Smith v. Timothy C. Pope Et Al.
- Author : Supreme Court of New York
- Release Date : January 16, 1979
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 62 KB
Description
Judgment unanimously affirmed, with costs. Memorandum: The contract for the proprietary operation by plaintiff of defendants' restaurant, including the use of defendants' liquor license, was against public policy (Alcoholic Beverage Control Law, Ãâ€Å¡Ãƒ‚§Ãƒâ€Å¡Ãƒ‚§ 2, 64, subd 4; Ãâ€Å¡Ãƒ‚§Ãƒâ€Å¡Ãƒ‚§ 100, 111), and hence was void (see Schley v Andrews, 225 NY 110; Duval v Wellman, 124 NY 156; 15 Williston, Contracts [3d ed], Ãâ€Å¡Ãƒ‚§ 1763). Special Term erred, however, in stating that the contract was, therefore, malum in se, words of art which in law lead to a denial of relief to either party (Schley v Andrews, supra; Irwin v Curie, 171 NY 409; Tracy v Talmage, 14 NY 162; Sturm v Truby, 245 App Div 357). We conclude, instead, that the contract was malum prohibitum (O'Connor v O'Connor, 263 App Div 820); and that in the circumstances of this case the trial court properly considered the relative culpabilities of the parties (see Irwin v Curie, supra; Pratt v Short, 79 NY 437; Tracy v Talmage, supra, pp 185-188, 191; 15 Williston, Contracts [3d ed], Ãâ€Å¡Ãƒ‚§ 1789) and directed the return of moneys advanced by plaintiff to defendant under the contract.