GRAY, J.
I think the judgment is right. It is a generally accepted rule that when a contract is to do a thing, which cannot be performed without the violation of the law, it is void; but when it may be performed lawfully, as well as in violation of the law, it is valid; in the absence, at least, of proof that the intention of both parties was that the law should be violated. The construction of a contract should be, when it is possible, in favor of its legality. (Co. Litt. 42, 183; Shore v. Wilson, 9 Clark Fin. at p. 397; Lorillard v. Clyde, 86 N.Y. 384.)
A lease, valid, as this was, upon its face, is not to be condemned as unlawful and, therefore, an unenforceable instrument, because the purpose for which the demised premises were to be used might, under certain circumstances, be within the prohibition of a statute. When the operation of the prohibition depends upon the proof and that is inconclusive upon the subject, then the obligation of the parties remains unaffected.
The presumption of a lawful intention must always prevail and the burden of overthrowing it is not met by him who asserts it by proof, which is quite consistent with a perfectly lawful purpose, however demonstrating that, if effectuated in a certain way, it would contravene the law. Here, as suggested below, it was not shown, and the evidence did not tend to show, that the lessor intended that the statute should be violated; or that no license ever could, possibly, be obtained by the lessee.
Nor did the evidence tend to show knowledge in the lessor that the lessee could not perform without violating the law.
The judgment should be affirmed, with costs.
MARTIN, VANN, CULLEN and WERNER, JJ., concur; BARTLETT, J., concurs in result; PARKER, Ch. J., not sitting.
Judgment affirmed.
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