28 F.2d 637 | S.D.N.Y. | 1927
Plaintiff’s motion for relief with respect to the revocation of his denatured alcohol permit must be denied. And this is true, notwithstanding that the permittee, and his agent, Katz, were acquitted by a jury upon an information which charged them, upon the dates specified in the revocation proceedings, with having “unlawfully sold and delivered 270 gallons of specially denatured alcohol to persons unauthorized to purchase the same with the intent and purpose of diverting the said denatured alcohol to beverage purposes.” The revocation was made upon the alleged sales which formed the basis of the criminal prosecution, but it was an accomplished fact prior to the prosecution and acquittal of plaintiff and his agent.
Relying upon the opinion of the Supreme Court, in Coffey v. United States, 116 U. S. 436, 6 S. Ct. 432, 29 L. Ed. 681, the counsel for the permittee strenuously contends that, in view of the prosecution and acquittal of Caserta and Katz, this court should, prior to final hearing upon the complaint, iTn-mp.dia.tely reinstate plaintiff’s permit, and require the prohibition authorities to honor his application for further withdrawals of denatured alcohol.
In my opinion, the judgment of acquittal is not sufficient, upon the theory of res adjudicata, to affect the Commissioner’s action in revoking the permits. Stone v. United States, 167 U. S. 178, 17 S. Ct. 778, 42 L. Ed. 127. Caserta had no vested right
The motion for preliminary relief is denied.