It is unnecessary in this case, as it was in Zobrest v. East Buffalo Brewing Co. (210 N. Y. 626) and Chilcott v. Broadway Brewing & M. Co. (210 N. Y. 633), to construe the contract in suit. In those cases the plaintiffs, while still in default, attempted to recover their liquor tax certificates. In this case the plaintiff brought the action on the theory that an absolute assignment was obtained from him by fraud and has been beaten on that *723 issue. It is unnecessary, therefore, to determine whether the assignment was absolute, or only as security, or to decide what remedy, if any, is available to the plaintiff in case of the wrongful disposition of the liquor tax certificate by the assignee.

The judgment should he affirmed, with costs.

Willard Bartlett, Oh. J., Werner, Collin, Cuddeback, Miller, Cardozo and Seabury, JJ., concur.

Judgment affirmed.