189 A.D. 109 | N.Y. App. Div. | 1919
The Liquor Tax Law provides for a proceeding in rem. Such proceedings leading to a forfeiture are to be strictly' followed. No doubt the Legislature might provide simply for posting the notice on the premises with publication in a newspaper, as in the earlier statutes for registration of land titles. (Tyler v. Court of Registration, 175 Mass. 71.) Here there was to be personal service by “ delivery ” of a copy to the persons having possession of the seized goods, as a condition for a real dispossession of the articles taken.
Instead of such compliance, Busso received an imperfect paper, calling on all persons claiming any right, title or interest
The counsel for the prosecution has cited certain decisions from the courts of Massachusetts, where the requirement is the service of a “ notice ” to appear, quite different from enforcing delivery of a copy of the writ or warrant.
In case of attachment of property, incapable of manual delivery, the Code of Civil Procedure (§ 649, subd. 3) requires that the copy of the warrant left with the garnishee shall be certified. It is held that the attachment fails, even if a true copy is thus left, unless the sheriff certifies that it is a copy. (Courtney v. Eighth Ward Bank, 154 N. Y. 688.)
The search for liquors is not confined to saloons. After July 1, 1908, they may be the subject of seizure “ in any place in this State.” Suppose they are in a large warehouse or place of public storage. The person in apparent possession of the premises might be a man at the entrance gate. The posting is to be “ in a conspicuous place upon said premises.” That may be in any hallway of the warehouse. The only safe rule is to follow the statute and have a compliance with both statutory safeguards.
Since this was not done, and the seizure was illegal, I see no course but to do what the judge did here — order the property restored. Appellant, however, argues that it was improper to award possession of the liquors and vessels to any party, without a hearing.
The statute provides for a trial. If the complaint be dismissed on a finding that the liquors were not for unlawful sale or distribution the judge is empowered to have the liquors and vessels “ returned to the place from which or to the person from whom they were taken.” The determination here that the proceedings failed by non-compliance with the statute entitled the respondent to the same restitution, and did not ^ sanction a retention of the goods illegally taken. Such was
Therefore, I advise to affirm, with ten dollars costs and disbursements.
Jenks, P. J., Mills, Blacemar and Kelly, JJ., concurred.
Order of the acting city judge of Mount Vernon affirmed, with ten dollars costs and disbursements.