with a view to avoid the difficulty of a possible misdescription of the article sold."

That case was followed and the same rule reasserted in Osgood v. People, 39 N. Y. 449.

The demurrer is overruled.

Ordered accordingly.

Supreme Court, Kings Special Term. February, 1897. Unreported. In the Matter of the Application of EMILY G. SMITH to revoke the Liquor Tax Certificate of ROLAND P. MERRILL.

DICKEY, J. S. C. From a careful reading of the testimony taken before the referee, I am satisfied that material statements in the application of the holder of the certificate were false, and that he was not entitled to a certificate. His statement that only one dwelling was within two hundred feet of his saloon, and his attaching the consent of Philip E. Schenck as the owner of that dwelling, was a false statement. That dwelling was not within two hundred feet, but the dwelling of this petitioner was within that distance.

While his statement was true as to one dwelling being within the distance, he has not the consent of that owner, so he was not entitled to a certificate. There are plenty of places where liquor is now sold, without starting new places within two hundred feet of property used exclusively for dwellings, and it will do no harm to have it authoritatively understood that certificates will be revoked by courts unless the law is strictly complied with.

This certificate must be revoked and cancelled, with $25.00 costs and disbursements against him.

Supreme Court, Kings Special Term, February 15, 1897. Unreported. PEOPLE ex rel. CHARLES REUSSE v. HARRY W. MICHELL for a Writ of Mandamus.

DICKEY, J. This is an application for a writ of mandamus to compel the Special Deputy Commissioner of Excise of Kings county to issue a transfer of an excise license from Herman Heincke to Charles Reusse. It is my opinion that the exception in subdivision 6 of section 17 of the Raines Law applies only to

such tenants of liquor stores, who were such at the time of the passage of the act. The intention of the lawmakers was to save them the necessity of getting the consent of the landlord, who had already leased them the premises to carry on the liquor business; but when a stranger to the owner applies for leave to carry on the business, I am convinced the law intended in such cases that the consent of the landlord should first be obtained, for while the owner of the property might consent that one man well known to him might carry on the liquor business in his building, it might well be that he would seriously object to another doing so. The manner of keeping a liquor store depends largely on the keeper. The law is meant to be restrictive in a measure, and the requirement that owners of buildings should consent before business may be carried on is a proper restriction. Motion denied.

First Appellate Department, February, 1897. Reported. 14 App. Div. 461. MAX AUGNER, Appellant, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Respondent.

An action to recover from a city moneys paid to it for a license-After revocation it is returnable to the licensee, to the extent of the unexpired term-Implied contract to return the money-Judgment may be taken without application to the court.

A complaint, based upon section 4 of chapter 112 of the Laws of 1896, known as the Liquor Tax Law, alleged that the plaintiff, on or about the 21st day of October, 1895, applied to the board of excise of the city of New York for a liquor license; that the board issued to him, upon his payment of $200, a license which by its terms expired in one year; "that pursuant to the provisions of the Liquor Tax Law this plaintiff is entitled to receive from the defendant the sum of sixty-one dollars, which is a proportionate share of the license fee paid as aforesaid for the unexpired term which the said license had to run after the 30th day of June, 1896" (the date when it was terminated by the Liquor Tax Law), and demanded judgment against the city for the sum of sixty-one dollars and interest. Held, that the complaint stated a cause of action upon an implied contract, based upon the obligation of the city of New York to repay to the plaintiff money which it had received, but which it was not justly entitled to retain.

That the action was one which came within the provisions of section 420 of the Code of Civil Procedure, and that judgment might be taken by the plaintiff without application to the court.

Barrett and Rumsey, JJ., dissented.

APPEAL by the plaintiff, Max Augner, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of December, 1896, denying his motion for judgment in the action.

The action was brought to recover from the defendant the sum of $61, the proportionate part of a license fee of $200, for the period from June 30, 1896, to October 21, 1896, for which a right of action was given to the plaintiff by section 4 of the Liquor Tax Law, being chapter 112 of the Laws of 1896.

Charles Goldzier, for the appellant.

George O'Reilly, for the respondent.

INGRAHAM, J.: We have here to determine whether the complaint in this action sets forth a cause of action which consists of "an express or implied contract to pay money received or disbursed, or the value of property delivered, or of services rendered by, to or for the use of, the defendant or a third person, and thereupon demands judgment for a sum of money only." (Code Civ. Proc. §420.) It is difficult to understand what was meant by the language here quoted. The meaning would be clear if the words "received or disbursed" were omitted. Reading the whole section together, however, it would seem as if it was intended to allow a judgment to be taken without application to the court in a case where the action was either for the breach of an express contract to pay, absolutely or upon a contingency, a sum or sums of money, fixed by the terms of the contract, or capable of being ascertained therefrom, by computation only, or an express or implied contract to pay money or the value of property delivered, or of services rendered, where the complaint demands judgment for a sum of money only. In such a case the complaint setting forth the cause of action must set forth the facts which show either an express contract, or facts from which the law raises the implication of a contract to pay a definite sum of money. There the defendant has notice of the foundation of the alleged obligation, and the amount of money for which the plaintiff asks judgment. By a failure to answer such a cause of action the defendant in substance consents to a judgment for the sum of money demanded, and in such a case no application to

the court is necessary, for the amount of the judgment can not exceed the amount specifically demanded in the complaint. Does the complaint in this action allege a cause of action based upon an express or implied contract to pay money? If it does, I think the case comes within the section of the Code before cited. The complaint alleges that on or about the 21st day of October, 1895, the plaintiff applied to the board of excise of the city of New York for a license permitting him to carry on business upon the premises No. 53 First street, and that upon payment by him to the board of excise of the sum of $200 as a license fee, the said license was duly issued to this plaintiff, which, by its terms, expired on the 20th day of October, 1896; that pursuant to the provisions of the Liquor Tax Law, this plaintiff is entitled to receive from the defendant the sum of $61 which is a proportionate share of the license fee paid as aforesaid for the unexpired term which the said license had to run after the 30th day of June, 1896, and a judgment was demanded against the city of New York for the sum of sixty-one dollars with interest.

By section 4 of the Liquor Tax Law (Chap. 112, Laws of 1896) it is provided that "When a license is terminated on the thirtieth day of June, eighteen hundred and ninety-six, as above provided, the holder of such license shall be entitled to receive and recover from the town or city in which such license was granted, such proportion of the whole license fee paid therefor, as the remainder of the time for which such license would otherwise have run, shall bear to the whole period for which it was granted, and the same shall be paid by such town or city on demand." The action, therefore, is brought to recover under this provision of the statute a proportionate amount of the sum of money which the plaintiff had paid for a license which had been abrogated by law on the 30th day of June, 1896. In other words, a license having been granted by the State to sell liquor for a certain period, and the State having abrogated that license before the period had expired, recognizing the justice of the plaintiff's claim to have refunded to him the proportionate amount of the license fee paid, where the privilege accorded by the license had been withdrawn, places upon the town or city in which such license was granted the obligation to repay the amount which the plaintiff had paid for his license, but for which he had received no consideration, the license having been abrogated. Is this a cause of action upon an implied contract to pay money received? It seems to me that

there is no doubt but that there would be such an implied contract if the complaint had alleged that the defendant had received for its own use this money so paid by the plaintiff for the license. It here appears that by law the board of excise is required to deposit with, and pay over to, the chamberlain of the city of New York all money received for licenses within thirty days after it is received (see chap. 145, Laws of 1879, amending §2, chap. 175, Laws of 1870), and we can assume that these public officers have done their duty and obeyed the law.

In the case of The People ex rel. Dusenbury v. Speir (77 N. Y. 150), in defining what is an implied contract, it is said: "There is a class of cases where the law prescribes the rights and liabilities of persons who have not in reality entered into any contract at all with one another, but between whom circumstances have arisen which make it just that one should have a right and the other should be subject to a liability similar to the rights and liabilities in certain cases of express contract." As was said in Moses v. Macferlan (2 Burr. 1008), "If the defendant be under an obligation, from the ties of natural justice, to refund, the law implies a debt and gives this action founded in the equity of the plaintiff's case as it were upon a contract." In this case we have the payment by the plaintiff of the license fee; the duty of the board to pay that money, within thirty days after it was received, to the chamberlain; and a provision of the statute which requires that a proportion of that money be paid to the plaintiff by the city of New York. Upon that obligation thus created by statute an action is brought. It seems to me that this is clearly an action upon an implied contract; a contract based upon the obligation of the city of New York to repay to the plaintiff money that it had received but which it was not justly entitle to retain, because the consideration for which it had been paid. viz., the right from the 30th of June until October 20, 1896, to carry on business under the license granted had been taken away by the legislature. There is nothing here that imposes upon the city of New York the payment of any sum of money as a penalty. The act itself does not create the liability, but directs the municipal corporation to discharge the obligation which in justice existed against it, to repay to the plaintiff the money that it held of his and for which he had received no consideration. The mere fact that the complaint does not allege that the money was actually received by the defendant does not prevent this obli