majority">Ingraham, First J.

Upon the former argument of this case, before two of the judges, they both agreed, that under the decision of the Supreme Court, in Tanner v. The Trustees of Albion, 5 Hill, 121, it must be considered as settled, so far as to control this court, that a bowling alley kept for gain is a nuisance, and that a lease of premises for the purpose of furthering the keeping of such an establishment, with the knowledge of the lessor, is void. It is, therefore, unnecessary, as my brethren are agreed on this point, to examine it at the present time. I refer to their opinions heretofore delivered, as containing the views of the court on this part of the case.

The question upon which a difference of opinion was entertained, and which has been re-argued at the present time is, whether the lessor let the premises in question for the illegal purpose of keeping such an establishment, so as to aid or assist in its maintenance.

The refereg has found against the defendant, and the judgment can only he reversed upon the ground that such finding is against the evidence.

The defence, as set up in the answer, is, that the plaintiffs mt the premises with their knowledge and approbation, that the same were to be used for an illegal purpose, specifying the offences of playing, gaming, &c., as prohibited in the Revised Statutes.

The evidence established that the plaintiff kept the premises previous to the letting for a public house and bowling saloon. That the witness kept the premises for the same purpose, and sold out previously to the plaintiff, and that the plaintiff said the defendant bought Heath & Updike out. The witness did not know from whom the fixtures and furniture of the saloon were purchased. It also appeared that the defendants made material alterations in the bowling alley.

Upon this evidence the referee found that it failed to *580establish a letting and hiring of the premises to be used for such illegal purpose, or that they were so occupied and used with the plaintiff’s consent and approbation.

There is in this case nothing which shows, that using the premises for the purpose of gaming, whether at bowling or in any other manner, formed a part of the contract of leasing, or that the plaintiff did any thing in aid or furtherance of the use of the building for such a purpose; and the question then arises, whether letting premises with the knowledge of facts, from which the lessor might reasonably suppose that the lessee would use the premises for such purpose, is sufficient to vitiate the contract of leasing.

The case of Kneiss v. Seligman, 5 How. Pr. R. 425, decides that such knowledge does not affect the contract for the sale of goods which the vendor knew were to be used by the purchaser for an unlawful purpose, unless the vendor does some act beyond the mere sale, in aid or furtherance of the unlawful object. In that case, Justice Seldeu says, “it is not established, and will never become the settled law, that bare knowledge on the part of the vendor that the vendee intends to put the goods to an illegal use, which intention may or may not be followed up, will vitiate the sale and deprive the party of all remedy for the purchase money.” The doctrine does not reach this case, because the illegal design does not enter into or form any part of the plaintiff’s contract, nor has he done any thing to its accomplishment.

In Bowry v. Bennett, 1 Camp. 348, where an action was brought to recover for clothes sold to a prostitute, and the defence was that the articles were sold for the purpose of enabling her to carry on her business of prostitution, Lord Ellenborough said it must not only be shown that the plaintiff had notice of the defendant’s way of life, but that he sold the clothes to enable her to carry it on.

In Farringer v. McBurney, 5 Cowen, 253, which was for the board of a female who had been living with the defendant, and had by him an illegitimate child, and the defence was that the contract was made with the view of facilitating *581the continuance of the state of prostitution between the defendant and the female boarded, the court say, “ The simple circumstance that the plaintiff had knowledge of the previous cohabitations did not furnish legal ground for an intent to sanction their repetition; something more was necessary.”

So in Gray v. Matthias, 5 Wend. 291, a bond given during cohabitation to a woman was held to be unimpeached, although the parties continued such cohabitation afterwards, while a second bond, given to secure a continuance of the cohabitation, was held to be void. In referring to that case, Mr. Justice Woodworth says, the test is, “ Does it appear by the contract itself, or was there any understanding between the parties, though not expressed, that the connection was to continue ?”

In Tolen v. Armstrong, 11 Wheat. 258, it was held that “ the promise, unconnected with the illegal act,was not tainted, although such illegal act was known to the party to whom the promise was made, and he was the original contriver of it.”

In De Groot v. Vanduser, 20 Wend. 390, the demurrer admitted the allegation in the plea that the act was done for the purpose of aiding the carrying on of the illegal business therein mentioned, and does not rest on the mere fact of knowledge.

In Jackson v. Walker, 5 Hill, 27, which was on an agreement to pay money to keep open the log cabin in Broadway, contrary to the law relative to elections, it was made a part of the agreement that the building should be used for the prosecution of the success of a political party, and it was held to be void for that reason; and even with that clause in the agreement, the judgment was affirmed in the Court of Errors only by a tie vote. (7 Hill, 387.)

In Gibson v. Pearsall, 1 E. D. Smith, 90, this court held that a lease was not void under the laws prohibiting gaming, unless the lessor, at the time of making the agreement, was a party to the illegal intent, and let the premises in furtherance thereof.

*582From these cases, I think the general deduction must be, that mere knowledge that the lessee would use the premises in violation of the statute, is not. sufficient to avoid the lease, unless the lessor was a party to such intent, and did some act in aid and furtherance of the intended violation of the law.

The evidence in this case does not establish any such act on the part of the lessor so clearly that we are called upon to reverse his finding as against the clear weight of evidence. On the contrary, the reasonable conclusion is, that the tenant was at liberty to follow his own conclusions as to the use to which he would put the premises after he had taken them, and he was under no obligations so to use them, nor did the lessor do any thing to aid in such use.

The judgment appealed from should be affirmed.

Dax-v, J., concurred.

Judgment affirmed.

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