Florgus Realty Corp. v. Reynolds

123 Misc. 161, 204 N.Y.S. 302, 1924 N.Y. Misc. LEXIS 1293, 1924 N.Y. App. Div. LEXIS 9987

• Court: Appellate Terms of the Supreme Court of New York
• Decided: May 1, 1924
• Status: Published

Opinion

Per Curiam.

Plaintiff brought this proceeding pursuant to section 1410, subdivision 5, of the Civil Practice Act, to remove the tenant on the ground that he was conducting an illegal business on the premises. In support of this contention he adduced evidence of the finding on different occasions of a few small flasks of what is said to have been whisky, and a number of bottles of beer said to contain more than one-half per cent of alcohol. It was shown also that the tenant, his brother, two barkeepers and a porter had been arrested on one or more occasions.

No attempt was made to connect the tenant directly with the possession of these beverages. Plaintiff’s reliance is solely on the implication to be drawn from section 33 of title 2 of- the National Prohibition Act (41U. S. Stat. at Large, 317), known as the Volstead .Act, that “ the possession of liquors by any person not legally permitted under this title to possess liquor shall be prima facie evidence that such liquor is kept for the purpose of being sold, bartered, exchanged, given away, furnished or otherwise disposed of in violation of the provisions of this title.”

Assuming that this rule of evidence is applicable to the instant case, it furnishes no proof that the tenant was engaged in an “ illegal business.” It is clear that even if the tenant had been shown to have some of these liquors in his own, possession it would be evidence only of the fact that he had violated the law, which did not necessarily involve the transaction of business, but may have resulted, for example, from giving the liquors away. It would seem, however, that the rule of evidence was intended to apply solely to prosecutions under the act. If we can indulge in the almost inconceivable assumption that it was intended to furnish a general rule of evidence to be applied to all civil cases such prima fade proof would be overcome by the fact, brought out at the trial, that the persons arrested were in each instance discharged.

The presence of fixtures in the premises of a character deemed appropriate to the carrying on of a retail liquor store is explained by the undisputed fact that such fixtures were placed in the demised premises before the enactment of the National Prohibition Act to enable the lessee to carry on within them the business of a licensed liquor saloon. That act did not obligate the tenant to take these fixtures out.

Final order reversed, with thirty dollars costs, and petition dismissed.

All concur; present, Bijur, McCook and Crain, JJ.

Order reversed.