#### George Young, Plaintiff, *v.*Benjamin H. Rogers, Defendant.

(Supreme Court, Rockland Special Term,

January, 1913.)

Liquor Tax Law — § 8 (9) — notice of abandonment of premises — surrender of hotel license — saloon license.

Where a tenant’s right to the use of leased premises is not limited to hotel purposes, and when the lease is about to expire he surrenders his hotel license and takes out a saloon license, he has an absolute right to abandon the premises on filing a notice to that effect under section 8 (9) of the Liquor Tax Law.

Motion for an injunction *pendente lite.*

Frank Lybolt, for plaintiff.

H. B. Fullerton, for defendant.

Tompkins, J.

This is a motion by the plaintiff for an injunction *pendente*lite, in an action to restrain the defendant from filing a notice of abandonment of the premises occupied by him, and owned by the plaintiff, under subdivision 9 of section 8 of the Liquor Tax Law. The plaintiff leased the premises to the defendant, who conducted a hotel upon said premises until October 1, 1912, at which time he surrendered his hotel license and took out a saloon license. His lease of the premises is about to expire, and the complaint alleges that he intends to abandon said premises for saloon purposes, and resume the same business upon other premises. There are already in the city of Port Jervis saloons and hotels in excess of one for every seven hundred and fifty population.

The facts are not in dispute, except perhaps as to whether the plaintiff’s building complies with the law in respect to hotels, under subdivision 1 of section 8 of the Liquor Tax Law, and whether the defendant is entitled to a hotel license; but, for the purpose of this motion, I will assume that the defendant’s hotel license surrendered by him last year was *118good, and that he had a right to a new certificate entitling him to traffic in liquors as a hotel keeper when he took out his saloon license the first of last October.

This is the view of the facts most favorable to the plaintiff, and yet I must hold that the plaintiff cannot maintain this action, and hence is not entitled to an injunction *pendente lite.*When the plaintiff rented the premises to the defendant, he assumed the risk of the defendant, at any time, changing his business from a hotel to a saloon business; and, as as matter of fact, the defendant did, upon the expiration of his last year’s hotel license, apply for' and receive a saloon license and under that has been operating ever since. This was apparently without objection on the plaintiff’s part, but I doubt whether any objection or action on his part could have prevented the defendant doing as he did, and taking out a saloon license instead of a hotel license. There was no provision in the lease limiting- the defendant’s right to the use "of the premises for hotel purposes.

The defendant, now having a saloon license, is given absolute right by the statute, to abandon the premises occupied by him, by filing a notice of abandonment under subdivision 9 of section 8 of the Liquor Tax Law and the consent of the owner is not necessary and I cannot see how this court can restrain the defendant from doing that which the Liquor Tax Law expressly authorizes him to do.

Motion denied, with ten dollars costs to the defendant, to abide the event.