140 N.E. 234 | NY | 1923
The controversy before us has to do with an award of costs.
A peace officer of the city of New York seized intoxicating liquors, held, as he charged, in violation of law. He made return of his proceedings in accordance with the statute to a judge who was authorized to issue a warrant (Code Crim. Pro. § 802-b, subd. 6). Thereupon demand for the return of the property was made by the owner, one Russato, who served an answer denying the legality of the seizure. "If such answer is interposed, the issue thus framed shall be deemed an action pending in the court of the judge or justice who issued the warrant, between the People of the State of New York and the liquor so seized and may be entitled in the name of the said *177 State and against the liquor so seized, adding for identification the name of the person or persons interposing such answer and claiming or defending the liquor so seized, and shall be tried in said court as other issues of fact are tried therein" (Code Crim. Pro. § 802-b, subd. 2). Upon the determination of the issue in favor of the claimant, the liquors are to be returned. Upon its determination in favor of the People, the liquors are to be destroyed, or, in the discretion of the judge, may be sold for restricted purposes, in which event the proceeds of the sale are to be "paid over and accounted for to the treasurer of the county" (Code Crim. Pro. § 802-b). In this case, the issue was determined in favor of the claimant. The charge was dismissed, and costs were awarded against the People of the state. A controversy ensued between the state and the county, each insisting by its representative that the burden of the costs should be borne by the other. The Appellate Division, concurring with the trial judge, held in favor of the county. The case comes to this court after the allowance of an appeal.
We find it unnecessary to choose between the contention of the state and that of its civil subdivision. Our judgment is that costs are not chargeable against either of them. The proceeding is in rem, not against the owner or possessor, but against the thing itself, which is treated as the real offender (People v.Diamond,
The judgment of the Appellate Division and that of the Trial Term should be reversed.
HISCOCK, Ch. J., HOGAN, POUND, McLAUGHLIN, CRANE and ANDREWS, JJ., concur.
Judgments reversed.