New-York tribune., 1921-05-28
State Court
w ont Pass, ON
Rum Seizures
Justice Tierney Says Suits
TO Recover Liquor Taken
by Police Are Matters
Magistrates Must Decide
First Mullan-Cage Ruling
Indicates Belief That Raids
ON Home Are Illegal
and Replevin Is Remedy


prohibition enforcement act yesterday
in the ex parte term of the Supreme
Court. He handed down decisions in
eight cases in which owners of liquor
seized by the police made application
for orders for the return of their prop
erty.
In every case Justice Tierney held
that it was not within his province to
issue such orders. All of the cases in
which he rendered decisions fall into
three groups. Those in one group are
covered by the decision in a case in
which the applicant made no claim that
! the liuuor was seized in his home with
! out warrant.
The second group consists of those
who, like James Shea, were raided in
! their own homes without warrant. The
cases in the third group are like that
of Lucian Constantine, from whom the
police obtained 227 barrels and 211
cases of liquor. Mr.. Constantine as
serts that the liquor was seized in his
! home, and the police allege that it was
seized outside his home.
No Warrant Needed, He Says
| AS to the seizure of liquor outside
| the owners home, Justice Tierney held
! that the statute authorized such seiz-
ure without warrant
"The return in this case" he said,
was made to a city magistrate. 1t
| seems to me that his court is the one
I designated by the statute to try an
issue as to the legality of the seizure
and that the owner must make his an
| swer there and abide by the judgment
of that court.
"The proceeding is not pending in
! this court and no action has been
begun or summons issued in this court.
! | know of no authority for this court
to make an order directing the conduct
or proceedings of the defendants. The
motion for the order applied for is
denied"
Mr.. Shea's liquor was seized because
it bore TIL; same brand as That found
/ IN saloon next door to his home.
Although denying the application made
/ by Mr.. Shea and advising him to in
stltute replevin proceedings, Justice
llerrey held that the seizure appeared
to be unjustiied. saying;
The action Of the defendants in
selzlng and retaining the plaintiff IS
property seem clearly unjustifed.
There IS nothing in the statutes that
permits the police to seize property in
the possession of person in his dwell
ling upon suspicion. The law provides
that they shall submit their grounds
Tor belief of violation to magis-
trate and obtain warrant.
Right of Recovery
"Other procedure is illegal. The
l nj ;ol,+
sion of his property, bat there is no
reason why he should not obtain relief
by the usual course of replevin. The
( provision Of the statute that inhfbits
resort to this remedy does not apply
to case where the goods are taken
from the possession of party in his
! own dwelling without warrant. For
| the reason stated the motion for an in
| junction is denied"
in the case of Mr., Constantine, who
filed afidayits denying the allegation
of the police that the liquor was seized
| outside his home, Justice Tierney re-
| ferred the litigants to the magistrates
court.
the owner shall file an answer in the
court to which the return is made and
that the issues thus raised shall be
tried by that court. That procedure
Should be followed and the question of
whether the goods were in the posses
sion of the owner in his private dwell
ing, and, if not, whether his possession
was otherwise legal, determined upon
evidence as on the trial of other
issues. 1t is not proper to dispose of
such questions by an order on ex parte
affidavits."
Harold L. Hart, the new state pro-
| hibition( enforcement officer, returned
&c his home in Elmira yesterday. He
said he had hardly got his feet warm
on the new job, but that he would re-
turn hot-foot Tuesday.
Seventeen of 109 persons indicted for
violation Of the Mullan-Gage law
pleaded guilty when arraigned in Gen
eral Sessions, and Judge Tally sus-
pended sentence upon them.
The Kings County grand jury dis
missed yesterday 103 of the ia cases
OF alleged violation of the state en-
forcement law which were presented
to that body on Thursday Sixteen per-
sons arraigned before County Judge
Haskell in Brooklyn on that charge
pleaded not guilty. In the case of
Patrick Flanagan, which came up for
trial before County Judge May, it was
impossible to find twelve men on the
jury panel who approved of prohibition,
and by agreement of both sides Judge
May acted as judge and jury and de-
cided that there was not enough evi-
ence to convict Flanagan.