Misc.] Appellate Term, First Department, April, 1921.

any decision in this state directly in point, to our minds the case most closely analogous and which involved as this a brewing company as defendant is Heart v. Brewing Co., 121 Tenn. 69. In that case the complainant had leased a house and lot in Knoxville to the defendant for eight years to be used as a saloon or place for the sale of intoxicating liquors and the action was brought to recover rent for the month of November, 1907. The chancellor sustained a demurrer to the appeal on the ground that the sale of intoxicating liquors was made unlawful and prohibited in Knoxville after November 1, 1907, and that, therefore, the purpose for which the lease was made was illegal and the contract void and unenforcible. The court said upon appeal: "There is no error in the action of the chancellor. When the contract was made, the purpose for which the property was leased -the sale of intoxicating liquors in Knoxville — was lawful and the lease valid and enforceable. Afterward, November 1, 1907, that purpose was made unlawful by the acts of the general assembly above referred to, and thus by operation of law the lease became and is void and unenforceable at the instance of either party. It is a principle of general application that all contracts are void which provide for doing a thing which is contrary to law, morality and public policy. The rule is the same when the purpose of the contract although lawful when made becomes unlawful by statute enacted before the full performance of its terms. It is not necessary in this case to determine whether or not the contract contained in the lease restricts the use of the property for the sale of intoxicating liquors. It was the purpose of both lessor and lessee, as clearly expressed in the instrument that it should be used as a saloon, and,

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Appellate Term, First Department, April, 1921. [Vol. 115.

this being made unlawful by law the contract is no longer enforceable.'

It is contended, however, by respondent that a lease of property solely for saloon purposes is not terminated by the taking effect, during the term, of a prohibitory liquor law, where by the construction or conduct of the parties, either the right was conferred on the lessees, or without protest the lessees sold upon the premises also non-intoxicating beverages and tobacco, so that the right of the lessee to operate his business was not entirely destroyed, and O'Byrne v. Henley, 161 Ala. 620; Hecht v. Acme Coal Co., 117 Pac. Repr. 133; Matter of Bradley, 225 Fed. Repr. 308, all decisions of courts of high authority sustaining this position, are cited to us. With due respect to the courts of their origin and without discussing their distinguishable features in certain respects, we are reluctantly constrained to disagree with the construction of the phrase there laid down, regarding it as neither grounded in reason nor made in the light of the evident intentions of the parties.

In the case at bar the cardinal purpose of the lease and the obvious intention of the demise as we see it was the dispensation of intoxicants. That was its primary and principal purpose. Other commodities which perchance might have been sold for the convenience of those who patronized the premises, and of subsidiary character and importance, were but secondary and incidental to the main business there conducted. Instead of qualifying the purpose they but added to its scope without change in that primary and dominating purpose. Terse expression of our view is found in Stratford v. Seattle Brewing Co., supra, where in the course of the opinion answering the same point raised here the court said: "Nor are we impressed with idea advanced by appellants that the

Misc.] Appellate Term, First Department, April, 1921.

'saloon business' does not necessarily mean a business of selling intoxicating liquors, but may mean a business or place for the sale of non-intoxicating drinks. The fact that what are commonly called soft drinks' are also generally sold at such places does not alter the character of such places as saloons,' nor is a place where soft drinks only can be sold commonly known as a saloon.'

But it is claimed that the parties if they wished could have avoided any doubt as to the legal result flowing from a contingency such as this by providing protection therefor in the lease, and that therefore the defendant's failure to include such a provision preempted it from any claim of right in its subsequent conduct. That may be so, but a like charge of dereliction may be laid at the door of the lessor. The contract was made in the light of the law as it existed at that time and they were not bound to anticipate that future legislation would prevent a performance of their obligations. Such contemplation cannot be charged to the minds of the parties at the time the contract was made.

We reach the conclusion, therefore, that upon the facts in the case before us, the lessee has been prevented by the enactment of the prohibition statute from performing its obligations under the terms of the lease and that it was discharged of its duty to pay rent for the premises after such enactment.

The judgment is modified by reducing the same to the amount of rent for the month of January, 1920, only and as so modified affirmed, with twenty-five dollars costs to appellant.

GUY and McCook, JJ., concur.

Judgment modified and as so modified affirmed, with twenty-five dollars costs to appellant.

Appellate Term, First Department, April, 1921. [Vol. 115.

RUDOLPH DANIELSEN, Appellant, v. SIGSBEE, HUMPHREY & Co., INC., Respondents.

(Supreme Court, Appellate Term, First Department, January Term -filed April, 1921.)

Municipal Court of the city of New York - jurisdiction man's wages-ships and shipping — judgments.

sea

The Municipal Court of the city of New York has jurisdiction of an action brought by a seaman to recover wages, and an order dismissing the complaint on the ground that the court had not jurisdiction, and the judgment entered thereon, will be reversed with leave to defendants to serve an answer.

APPEAL by plaintiff from judgment and order of the Municipal Court of the city of New York, borough of Manhattan, first district, dismissing his complaint on the ground that the Municipal Court had no jurisdiction of the action.

Silas B. Axtell (Arthur Lavenburg, of counsel), for. appellant.

Harrington, Bigham & Englar (Horace M. Gray, of counsel), for respondents.

McCook, J. This action is brought by a seaman to recover wages against a private corporation and the United States Shipping Board Emergency Fleet Corporation. The plaintiff alleges that he was regularly employed as a member of the crew of the vessel Cabegon and was wrongfully discharged. Plaintiff alleges the ownership of the vessel in the following language:

"Third. Upon information and belief, that at all time hereinafter mentioned, the defendants owned and/or operated and/or managed and/or controlled a certain merchant vessel known as the Cabegon."

Misc.] Appellate Term, First Department, April, 1921.

Defendant Sigsbee, Humphrey & Co., Inc., moved to have this paragraph made more definite and certain, and the trial court, upon such motion, held it had no jurisdiction of the action and dismissed the complaint, relying as shown by the opinion upon Roche v. McCaldin, 1 Misc. Rep. 174.

The basis of Roche v. McCaldin, supra, is chapter 410, section 1286, subdivision 4, of the Laws of 1882, which re-enacts in substance chapter 71, section 2, of the Laws of 1819.

In 1819 the present Municipal Court was not established, but a similar court, presided over by the "Assistant Justice of the City of New York" was then in existence. By the Laws of 1819, chapter 71, it was provided: "I. That the justices court in the city of New York, having marine jurisdiction, shall be called and known by the name of the marine court of the city of New York.

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" II. That the assistant justices of the city of New-York, shall not have jurisdiction to hear and determine any actions to be brought by any seaman or mariner, or other person, belonging to any ship or vessel, for seaman's wages, particularly mentioned and specified in the one hundredth and sixth section of the act hereby amended."

The statute above quoted referred to section 106 of the Revised Laws of 1813, chapter 86, which gave jurisdiction of all actions for seaman's wages to the Justices Court. The name of the "Justices Court" by chapter 71 of the Laws of 1819 was changed to the Marine Court" and later became our present City Court, while the "Assistant Justices," of whom there was one for each city ward, as created by the Laws of 1807, chapter 139, eventually became our present Municipal Court.