Opinion
November 16, 1979
Appeal from the Erie Supreme Court.
Present — Dillon, P.J., Cardamone, Simons, Callahan and Witmer, JJ.
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 N.Y. 110; Duval v Wellman, 124 N.Y. 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 N.Y. 409; Tracy v Talmage, 14 N.Y. 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 N.Y. 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.