Clement v. Giorgio

128 N.Y.S. 631 | N.Y. App. Div. | 1911

Per Curiam :

This proceeding was instituted under subdivision 2 of section 33 of the Liquor Tax Law (Laws of 1909, chap. 39, as amd. by Laws of 1910, chap. 485) and upon the verified complaint of a special agent a warrant was issued to search the premises for liquors specified therein. The respondent interposed an answer controverting the allegations of the complaint upon which such warrant was issued. The issues framed thereby were tried by a jury at a Trial Term of the Supreme Court and a verdict returned for the claimant, upon which judgment was duly entered. From that judgment the State Commissioner of Excise appeals. The claimant moves to dismiss the appeal upon the ground that no appeal is allowed from such a judgment. The statute provides that if an answer is interposed the issues thereby framed should be deemed an action pending in the court of the judge or justice who issued the warrant between the State Commissioner of Excise and the liquor so seized, and may be entitled in the name of said State Commissioner of Excise and against the liquor so seized, adding for identification the name of the person or persons interposing such answer and claiming the liquor so seized, and should be tried in said court as other issues of fact are tried therein. It is further provided in said section that if the testimony produced on the hearing before such judge or justice or upon such trial before the court shall fail to establish that the liquor so seized was kept, stored or deposited for the purpose of unlawful sale or distribution within this State judgment shall be entered dismissing such complaint and providing that such liquor and the vessels containing the same be returned to the place from which or to the person from whom they were taken. There is no express provision in the Liquor Tax Law providing for or limiting an appeal from a judgment or order entered in pursuance of its provisions. The State Commissioner of Excise claims the right to appeal under section 1346 of the Code of Civil Procedure, which provides that an appeal may be taken to the Appellate Division of the Supreme Court from a final judgment rendered in the Supreme Court where the judgment was rendered upon the verdict of a jury. This is clearly a judgment entered upon the verdict of a jury. The motion, however, to dismiss the appeal is based upon the presumed intention of the Legislature to prohibit such appeal upon the ground that no provision is made in the statute for the custody of the liquor seized pending the appeal and that the provision which prohibits a replevining of the property is confined to the time during which the proceeding or trial is pending, and the provisions of the statute that the judgment shall provide that the liquors and the vessels containing the same seized under the warrant be returned to the place from which or to the person from whom they were taken. We can see nothing in these provisions to justify the court in taking away the right expressly given by the Code of Civil Procedure to a party to a civil-action against whom judgment is entered upon the verdict of a jury of appealing to the Appellate Division. As to the effect of the appeal or the questions which it will present for review we are not called upon now to determine. Under section 1313 of the Code of Civil Procedure service of the notice of appeal perfects the appeal and stays the execution of the judgment or order appealed from and this suggests the reason why no express provision was made for the disposition of the property pending the appeal. If the direction to return contained in the final judgment was suspended or the execution of that provision stayed pending appeal it would appear that the duty of the officer named in the warrant to return the property was also suspended. We think it clear that the right to appeal exists and the motion to dismiss the appeal is therefore, denied, with ten dollars costs. Present —Ingraham, P. J., McLaughlin, Clarke, Scott and Dowling, JJ. Motion to dismiss appeal denied, with ten dollars costs.