p. 596The People of the State of New York, Appellant, v. 1400 Packages Containing Scotch Whisky, etc., Respondent.Headnote
Intoxicating liquors —■ seizure without a warrant — notice to show cause why liquor should not he forfeited must be signed and served within reasonable time — application for order directing return of liquor — when allegations of ownership or possession are controverted moving party must sustain claim by proof.1. When liquor is seized without a warrant under the provisions of subdivision 6 of section 802-b of the Code of Criminal Procedure the notice to show cause why the liquor should not be forfeited must be signed and served within a reasonable time; otherwise upon an application made in the seizure action the liquors must be returned to the place from which or to the person from whom they were taken.
(People v. Diamond, 233 N. Y. 130 , followed.)
2. Where, however, in a proceeding for the return of liquor so seized bare allegations of ownership or of possession of the liquor are controverted, the moving party must sustain his claim by proof.
People v. 1400 Packages Scotch Whisky, 206 App. Div. 711 , reversed.
Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered May 16, 1923, which reversed an order of the Queens County Court denying a motion for an order directing the property clerk of the police department of the city of New York to return to John Aloise, claimant, the intoxicating liquors and property seized by the police officers from premises No. 157 Fulton avenue, Astoria, Queens county, N. Y., without a warrant for search and seizure, on November 11, 1922, and granted said motion.
Dana Wallace, District Attorney (Joseph Lonardo of counsel), for appellant.
Otho S. Bowling and Wallace E. J. Collins for respondent.
In People v. Diamond ( 233 N. Y. 130 ) we held that when liquor was seized without a warrant under the provisions of subdivision 6 of section 802-b of the Code of Criminal Procedure the notice to show cause why the liquor should not be forfeited must be signed and served within a reasonable time; otherwise
p. 597upon an application made in the seizure action the liquors must be returned to the place from which or to the person from whom they were taken. In the present proceeding the Appellate Division has held upon evidence justifying the result that there was unreasonable delay in this respect. Obviously, however, a stranger may not apply to the court for a return of the liquor seized.
In the proceeding before us one John ALoise made an affidavit stating that the liquor in question was taken from premises occupied by him; that these premises were a private house; that liquors were stored in the cellar of such house and that the liquor was his lawful property. In opposition to the application for a return of the liquor an affidavit was presented denying these allegations.
Where in such a proceeding bare allegations of ownership or of possession of the liquor are controverted the moving party must sustain his claim by proof. Doubtless the judge hearing the motion may, in his discretion, determine the fact upon affidavits setting forth the facts or he may order a referee to take the evidence and report it to him with his opinion. Some proof there must be and the burden is upon the applicant to present it. hiere there is none.
The order of the Appellate Division should be reversed and that of the Trial Term affirmed.
All concur; Cardozo, J., in result.
Order reversed, etc.