tificate expired in May, 1897. In April, 1897, the defendant Ringler & Co. lent Burns the sum of $350 to enable him to take out a new license for the year running from May, 1897, to Maƒ, 1898, and Burns assigned such certificate to the defendant Ringler & Co. as security for the loan. Burns paid neither the plaintiff nor Ringler & Co. In November, 1897, the plaintiff brought this action against the defendant Burns to recover possession of the liquor tax certificate for the year 1897 to 1898, or its value ($150), in case return could not be had. On motion, Ringler & Co. were made parties defendant. The action was tried before the city judge of Yonkers without a jury, and from his decision in favor of the defendants this appeal is taken.

We are of the opinion that the action cannot be maintained. It is strictly an action at law in replevin, and must be considered as such, for the City Court of Yonkers has no jurisdiction of equitable actions. At the time of the execution of the mortgage by Burns to the plaintiff, the license, or tax certificate, for the year 1897 to 1898 was not in existence. The mortgage did not, at the time of its execution, create a lien on the certificate, because that was not in esse; at most, it operated as a contract to give a lien. This is effectual in equity, as between the parties, when the property comes into existence and no rights of creditors or innocent third parties intervene. (Kribbs v. Alford, 120 N. Y. 519; Deeley v. Dwight, 132 id. 59.) We do not understand, however, that such a contract gives any legal title or lien, cognizable in a court of law, as the foundation of a cause of action (Hale v. Omaha National Bank, 49 N. Y. 626); though, unquestionably, it could be set up as a defense, since equitable defenses are, under the present system, admissable in legal actions. (McCaffrey v. Woodin, 65 N. Y. 459.) In Hale v. Omaha National Bank, as in the present case, the lien sought to be enforced was on subsequently acquired property. There Judge ALLEN said: "Very likely the action cannot be maintained as a common-law action of trover, although it is not necessary to pass upon that question. That action can only be brought by one having the legal title, either as a special or a general owner, one having the legal right to the possession." But there is a further difficulty in this case. The tax certificate is not a chattel but a chose in action. (Niles v. Mathusa, 20 App. Div. 483.) The recovery of the piece of paper on which the license is written would be of no advantage to the plaintiff. In its complaint it alleges a demand on the

defendant Burns for an assignment of the certificate and Burns' refusal. The City Court of Yonkers has no power to compel Burns to execute any assignment. Therefore, even if an action of replevin would lie in the case of an equitable lien on a chattel, it cannot be maintained in the case of a chose in action.

We are further of opinion that the decision of the city judge was correct on the merits. Equity will only enforce a lien on subsequently acquired property, where superior equities of third parties have not intervened. In this case as Ringler & Co. advanced the very money which paid for the tax license or certificate in suit, their equity was paramount to that of the plaintiff's.

The judgment appealed from should be affirmed, with costs.

All concurred, except HATCH, J., absent.

Judgment affirmed, with costs.

Second Appellate Department, July, 1898. Reported. 32 App. Div. 354.

EDWARD GING, Respondent, r. JOHN SHERRY, as County Treasurer of Suffolk County, Appellant.

Intoxicating liquor-Payment of a rebate receipt, how enforced.

A rebate receipt given by a county treasurer to repay an excess of payment exacted, and made, for a liquor tax certificate, can be enforced only in the manner prescribed by section 25 of chapter 112 of the Laws of 1896, as amended by chapter 312 of the Laws of 1897.

APPEAL by the defendant, John Sherry, as county treasurer of Suffolk county, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk on the 29th day of November, 1897, upon the decision of the court rendered after a trial before the court without a jury at the Suffolk Trial Term.

John M. Ward, for the appellant.

Timothy M. Griffing, for the respondent.

WOODWARD, J.: On or about the 1st day of May, 1896, Albert M. Darling, then county treasurer of Suffolk county, issued liquor tax certificate No. 26251 to the plaintiff, receiving in payment therefor the sum of $200. On the tenth day of Julyplaintiff having, in the meantime discovered that, under the provisions of the Liquor Tax Law, he was required to pay only $100 for his tax certificate-a notice was served upon the county treasurer of Suffolk county to retain all of the money paid to hin, in excess of $100, for the said tax certificate, and to return the same to the plaintiff. Subsequently, and on the 5th day of February, 1897, the defendant in this action, who had, in the meantime, succeeded to the office of county treasurer of Suffolk county, notified this plaintiff that, acting under instructions from the excise department, the original tax certificate would be received by him, and a new certificate, covering the same period, would be issued, and that the plaintiff would be given a rebate receipt for the difference between the $100 which should have been paid and the $200 which was, in fact, paid. Acting under this suggestion, plaintiff surrendered his original liquor tax certificate and was given a new certificate. He, at the same time, accepted from the defendant a rebate receipt, which reads: "Received, this fifth day of March, 1897, from Edward Ging, of the village of Greenport, in the county of Suffolk, N. Y., surrendered Liquor Tax Certificate No. 26,251, issued for $200, under subdivision No. 1 (series of 1896), on which there is a balance of pro rata rebate of $100 from May 1, 1896, to April 30, 1897 (full months), payable from any excise money hereafter received from said city or town, or in any other manner hereafter legalized." On May 28, 1897, the plaintiff presented said receipt to the defendant, and demanded the payment thereof. Payment was refused, the defendant stating that he had been instructed not to pay the rebate; that he could not pay it. The defendant admitted that he bad received moneys from the town of Southold, but that he had paid it over as directed by law, and the trial court (a jury being waived) found in favor of the plaintiff, and from the judgment entered this appeal comes to this court, the defendant relying upon the question of law involved.

It was found in the practical operations of the Liquor Tax Law of 1896 (Chap. 112), that there was great difficulty in harmonizing the provisions of sections 25 and 13. Section 25 provides for the surrender and cancellation of these liquor tax certificates, and

for the refunding of that portion of the tax which is not earned at the time of such surrender; and section 13 directs that the moneys collected shall be turned over to the several funds within a short period, so that the officers who were directed to refund the moneys were without the funds to comply with the law. The excise department, to meet this situation, devised the system of rebate receipts, one of which was given to the plaintiff in this action; and the Legislature, in 1897, enacted that "All outstanding receipts, issued and given for liquor tax certificates, heretofore surrendered and canceled, shall also be paid in the manner above provided for the payment of rebate moneys upon certificates hereafter surrendered and canceled, upon the order of the said State Commissioner, to be issued by the said commissioner upon the surrender of such receipt to him, accompanied by the verified petition of the holder of such receipt, setting forth the facts that the holder of said canceled certificate, at the time of the surrender and cancellation thereof, had not violated any of the provisions of the Liquor Tax Law, and has not been arrested or indicted for any such violation." (§ 25, chap. 112, Laws of 1896, as amended by chap. 312, Laws of 1897.) This statute, enacted at the sugges tion of the State Commissioner of Excise, was designed to provide for the payment of rebates, and the mere fact that in the case at bar the rebate was for money paid in excess of the legal rate does not change the rights of the parties, nor does it serve to give this plaintiff a cause of action against the county treasurer of Suffolk county The receipt given to the plaintiff provides that the rebate shall be "payable from any excise money hereafter received from said city or town, or in any other manner hereafter legalized." The Legislature has since that time legalized a particular method for reimbursing those who have these rebate receipts, and the plaintiff must, therefore, look to the source pointed out by the law for his money.

There is no reason to doubt that the plaintiff in this action has had the advantages of a liquor tax certificate equal to those who have in other localities paid $200 for the same. The village in which he is located unquestionably has a population in excess of 1,200 inhabitants, but the statute requires that this fact shall appear by either the last State or the last National census, and he was technically entitled to the tax certificafe on payment of $100. He has surrendered his original certificate, and has taken the receipt of the county treasurer, which entitles him to a rebate,

and the law points out a method of payment. We are unable to see that he has any equities in the premises which would warrant this court in sustaining a judgment in his favor against the county treasurer; and as he has his remedy under the law, as amended in 1897, we conclude that the judgment should be reversed and the complaint dismissed, with costs.

All concurred.

Judgment reversed and complaint dismissed, with costs.

First Appellate Department, August, 1898. Reported. 33 App. Div. 130.

HENRY H. LYMAN, as State Commissioner of Excise of the State of New York, Appellant, v. BROADWAY GARDEN HOTEL AND CAFE COMPANY and FIDELITY AND DEPOSIT COMPANY of Maryland, Respondents.

Intoxicating liquor-Action on a bond given to secure a liquor tax certificate-When the complaint states but a single cause of action. A complaint in an action on a bond given to the People of the State of New York to secure a liquor tax certificate, which avers a number of specific breaches of the various conditions of the bond, contains but a single cause of action.

APPEAL by the plaintiff, Henry H. Lyman, as State Commissioner of Excise of the State of New York, 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 6th day of May, 1898, setting aside the plaintiff's complaint and granting him leave to serve an amended complaint.

The complaint is upon a bond given to secure a liquor tax certificate. The bond reads that the parties are held and firmly bound unto The People of the State of New York in the penal sum of $1,600. The condition is that, if the tax certificate is given unto the principal, he will not, to quote the precise lan guage of the instrument, "while the business for which such Tax Certificate is given shall be carried on, suffer or permit any