The complaint in this suit contains two causes of action, the first under section 22, title 2, of the National Prohibition Act (27 USCA § 34) to enjoin a liquor nuisance maintained at premises No. 5622 Broadway, New York City; the second under section 23, title 2 (27 USCA § 35), to enjoin soliciting and accepting orders for the sale of intoxicating liquors.
Prohibition agents visited the premises on February 11, 1931, were admitted by a bartender named Bums who sold one of them a glass of beer, and also in their presence sold a glass of whisky to another person. The bartender was arrested, but is not a party to this suit.
Under a search warrant directed to the premises various intoxicating liquors were seized. There was evidence that the defendant Mike Fox was employed at the premises by one Felix Cornyn as one of the bartenders at a salary of $50 a week, that Cornyn held a lease thereof, and that the cash receipts from the business conducted there were paid over to him.
Upon the foregoing evidence the trial judge held that the defendant Fox was in eharge of the business at premises No. 5622 Broadway and therefore was a principal in the commission of a nuisance there. He also
There can be no doubt that there was sufficient evidence to justify-the finding that the premises in question were a common nuisance within the meaning of section 21, title 2, of the Prohibition Act (27 USCA § 33). Fox was the night bartender and was in general charge of the place from 5 o’clock in the afternoon until the closing hour. He was an aider and abettor of the nuisance, and, as such, was rigidly enjoined, under section 22, title 2 (27 USCA § 34), from selling liquor on the premises. He had been working in the liquor business since before the days of prohibition, had been working for Cornyn for twenty years, and for some eighteen months had been employed as a bartender at 5622 Broadway. Upon the authority of our decisions in United States v. McCrory,
We think that the part of the decree which closed the premises for one year cannot stand. The finding that the premises were a common nuisance does not help to sustain it, for the cause of action on which the right to close depended was in personam, and the plaintiff had to obtain jurisdiction over the proper defendant to justify closing his premises. United States v. McCrory (C. C. A.)
Fox could not control the business that was being conducted at 5622 Broadway. If he stopped selling liquor there, another bartender could go on under the direction of Cornyn, or Cornyn could still sell himself. Fox, though temporarily in charge, was no more than the servant of Cornyn and had no interest in the premises and no possession. Possession remained in his employer. Presby v. Benjamin,
In cases like the present it may be entirely unnecessary to join the owner of the real estate,, for he could still collect rent from his tenant in the absence of ouster by title paramount, or could intervene and, upon filing a cross-hill, cancel the lease to Cornyn for infraction of the Prohibition Act (title 2, section 23), and, in the latter event, if innocent of wrongdoing, could regain possession of his property. United States v. Pepe (C. C. A.)
While section 39, title 2, was perhaps principally aimed at libels for forfeiture, it also embraces eases where “a judgment affect-, ing” the property of a citizen is rendered and he is not the one who in person violated the law. The requirement of this section that such an individual must be made a party to the suit reinforces the general principles of law already discussed.
The government seeks to uphold the order closing the premises on the ground that section 22, title 2, of the Prohibition Act (27 USCA § 34) permits an “occupant” of premises which have been closed to regain possession upon giving a bond against the continuance of the nuisance. It argues that Fox was a person in charge of the premises in question and that under our decision in United States v. Johnson,
In United States v. Johnson,
The injunction against Fox, so far as it prevented him from doing acts in connection with the maintenance of a nuisance at No. 5622 Broadway, was properly issued. Section 21, title 2, of the Prohibition Act, declares that premises where intoxicating liquor is manufactured, sold, kept, or bartered in violation of the act are a common nuisance. Section 22, title 2, provides that an action may be brought in equity to enjoin such a nuisance. Accordingly, Fox, who, if not maintaining the nuisance, was aiding and abetting the nuisance and conspiring with the proprietor to maintain it, might properly be enjoined from continuing his unlawful acts. But the decree went further, and not only enjoined him from doing acts in connection with the maintenance of the nuisance at the premises in question, but likewise attempted under the provisions of section 23, title 2, to enjoin him from “soliciting or taking or accepting orders for the sale of, or selling, possessing or keeping intoxicating liquor * * * anywhere else in the Southern District of New York.” Such a broad injunction we sustained in United States v. Rosoff,
We fire of the opinion that, in so far as the injunction against Fox restrained him from doing acts unconnected with the nuisance maintained at No. 5622 Broadway, it was not warranted by the Prohibition Act and must be reversed.
The order denying the application of Felix Cornyn is reversed. That part of the decree which directed the closing of the premises and enjoined Mike Fox from soliciting or taking or accepting’ orders for the sale of, or selling, possessing, or keeping intoxicating liquor elsewhere in the Southern district of New York than on said premises is reversed and vacated, but the decree is otherwise affirmed as against Mike Fox.
The foregoing disposition is made without prejudice to the right .of the plaintiff to file a new bill against Felix Cornyn in order to have the premises declared a common nuisance, to obtain an injunction against him, and to have the premises closed pursuant to section 22, title 2, of the Prohibition Act.