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 been submitted. Bloss v. Morrison, 47 Hun 218. The referee was guilty of error in failing to make rulings, if he had the power to hear the case and make findings. And if he had not that power, he was then guilty of error in assuming the functions of a trial court and finding facts and conclusions of law. He was acting in one capacity or the other, and in either capacity he was guilty of error, which prejudiced the defendant and deprived him of a fair trial. Peck v. York, 47 Barb. 131; Clussman v. Merkel, 3 Bosw. 402; Brooks v. Christopher, 5 Duer 216; Smith v. Kobbe, 59 Barb. 289; Wagner v. Finch, 65 Barb. 493;.Barren v. Sanford, 1 Hun 625; Lathrop v. Brainhill, 3 Hun 394; Kerslak v. Schoonmaker, 1 Hun 436. For these errors of the referee a new trial should have been granted. Beach v. Cooke, 86 Am. Dec. 260; Allen v. Way, 7 Barb. 585. On the point of the improper admission of certain evidence before the referee appellant cites Meyers v. Betts, 5 Denio 81; Monble v. Sykes, 2 So. Rep. 701; Rabette v. Orr, 3 So. Rep. 420; Clark v. Crandall, 3 Barb. 612; De la Reva v. Berreysa, 2 Cal. 195; Phelps v. Peabody, 7 Cal. 50; Goodrich v. Mayor, 5 Cal. 430; Plant v. Fleming, 20 Cal. 92. Appellant denies that a partnership existed, but granting this to be the fact the plaintiff cannot recover, because he seeks to recover profits made from the sale of intoxicating liquors, sold, so far as he is concerned, without a license, and hence illegally, and the law will not aid him in recovering. State v. Commissioners, 22 Fla. 1; Mitchell v. Scott, 62 N. H. 596. Holding that a landlord cannot recover rent for a building used for the sale of intoxicating liquors without a license. Adams v. Hackett, 59 Am. Dec. 376; Webb v. Fulchire, 40 Id 419; Lemon v. Grosskopff, 99 Id 65: O'Donnell v. Sweeney, 36 Id 336; Miller v. Davidson, 44 Id 417; Gravier v. Carroby, 36 Id 608. Where the law prohibits a business without a license, and one contracts to exercise such calling and has no license, he cannot sue upon the contract. De Well v. Lander, 39 N. W. Rep. 349. The imposition of a penalty for doing an act implies prohibition, and a contract based npon the performance of such an act is void. Solomon v. Dreschler, 4 Minn. 278; Ingersoll v. Randall, 14 Minn. 400. This action is in effect an action to recover the