137 N.Y.S. 780 | New York County Courts | 1912
A verified complaint in the above-entitled proceeding made by a special agent of the state commissioner
The officer’s receipt was in the following form:
“ I, Walter G. Ingalls, a special agent of the State Commissioner of Excise of the Village of Fultonville, H. Y., do hereby certify and return that I have taken under the within warrant of search and seizure issued by County Judge of Schoharie County of the County Court from. Ilotel, Main Str. in the said Town of Carlisle of..........where the
“ 228 Bottles of Lager Beer.
“12 gal. Jug of Whiskey, partly full.
“ Dated at Argusville, U. Y., the 17th day of July, 1912.
“ Walter Gr. Ingalls,
“ Special Agent.”
These proceedings are under a very recent statute; the exact mode of procedure is meagerly outlined in section 33 and the decisions thereunder are few.
The statute provides as follows: “ The warrant shall contain a notice directed generally to all persons claiming any right, title or interest in such liquors, or in the vessels containing the same, to appear before the judge or justice issuing such warrant, at a place and at a time therein specified, * * and show cause why such liquors and the vessels containing the same should not be forfeited to the state.” As to the manner of execution of the warrant the statute says: “A copy of such warrant shall be delivered to the person so keeping such liquors, if he be present at the time of such seizure, and if he be not present, then to the person, if any, apparently in possession of such liquors or of the premises wherein the same are found, and another copy of such warrant shall be posted in a conspicuous place upon said premises.” The statute further provides that “ the special agent or peace officer seizing the liquors under the warrant, shall give a receipt therefor, to the person so keeping such liquor, if present, and if he be not present, then to the person, if any, apparently in possession of such liquor, or in charge of such premises, or in the absence of any such person, he must leave such receipt in the place where the liquors are found.” Then follows the provision: “At the time and place specified in the notice contained in such warrant, any person claiming any right, title or interest in the liquors seized under such warrant, or in the vessels containing the same, may interpose an answer controverting the allegations of the complaint, upon which such warrant was issued.”
The return or affidavit of service of the warrant does not
In Matter of Huff, 136 App. Div. 297, the party claiming an interest in the liquors filed no answer before the magistrate, but contended that the complaint being upon informa
In this case, on the-face of the papers or otherwise, there is no proof of the posting of the warrant in a conspicuous place upon the premises. Where the property is to be taken it seems to me that none of the safeguards provided by law should he' disregarded. For aught the magistrate may know, one or more parties other than Ellery O’Brien may have some interest, right or title in the goods and containers, and unless they are notified constructively by the posting of the notice, as section 33 provides, it seems to me that the magistrate has no jurisdiction to order the property forfeited to the state.
The complaint herein is verified on July 15, 1912, and alleges, among the sources of complainant’s information and belief, that liquors were kept on the premises for unlawful sale, that lager beer was sold thereon on the 14th day of June, 1912; and while the condition alleged upon June 14, 1912, might have been presumed to continue to July 15, 1912, the date of the verification of the complaint and the issue of the warrant, however, as the receipt of the officer shows that the liquors have been taken from the premises since the verification of the complaint, the same complaint
Ordered accordingly.