Smith v. Pope

—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, §§ 2, 64, subd 4; §§ 100, 111), and hence was void (see Schley v Andrews; 225 NY 110 ; Duval v Wellman, 124 NY 156 ; 15 Williston, Contracts [3d ed], § 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], § 1789) and directed the return of moneys advanced by plaintiff to defendant under the contract. (Appeal from judgment of Erie Supreme Court—void contract.) Present—Dillon, P. J., Cardamone, Simons, Callahan and Witmer, JJ.