In re Huff

136 A.D. 297, 120 N.Y.S. 1070, 1910 N.Y. App. Div. LEXIS 16

Opinions

Robson, J. :

The warrant under which the officer seized the property specified in his receipt, returnéd with the warrant, was issued by a justice of the Supreme Court upon presentation to him of the verified complaint of John W. Huff accompanied by an additional verification made by Clarence. J. Philbrick. The application for the warrant was made under section 33 of the Liquor Tax Law (Consol. Laws, chap. 34; Laws of 1909, chap. 39),

Footnotes

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* providing for the “ Search for, seizure, and forfeiture of liquors kept for unlawful traffic.” There is no question but that the complainant was by the statute permitted to make the verified complaint provided for by subdivision 2 of this section. In effect the statute further prescribes and requires that the complaint made thereunder shall set “ forth facts which establish that liquors are kept, stored or deposited in any place in this State for the purpose of unlawful sale or distribution therein within this State, or that there is probable cause for believing that liquors are so kept, stored, or deposited.” It is only upon such a complaint that any of the judicial officers designated in the statute can issue the warrant therein provided for. If the complaint upon which the magistrate' acts in issuing the warrant does not substantially meet these statutory requirements it would seem to follow that the warrant issued thereon would be unauthorized and upon proper application should be so declared.

The requirement of the statute is that the complaint shall set “forth facts which establish,” etc., as above quoted. The complaint on which the warrant in these proceedings was issued was, as to all material allegations of fact tending to establish that the liquors in question were in fact, or that there was probable cause for believing that they were, kept, stored or deposited for the purpose of unlawful sale or distribution, made solely on information and belief. Mor does it contain any statement showing any fact from which personal knowledge of any one of these facts, so alleged by complainant, can be inferred. It is equally barren of any statement showing the sources of his alleged information or the grounds of his belief.

Mor is the complaint assisted as a statement of material facts by the subjoined affidavit of Philbrick, which accompanies the complaint. His affidavit states only his residence and “that he'has read the foregoing complaint and knows the contents thereof and that the same is true to his own knowledge.” That is, as to the material facts he simply swears that of his own knowledge the complainant has been informed of and believes the statement of the facts he has alleged on information and belief. This is clearly insufficient as a statement that he knows those material facts to be true. (Hitner v. Boutilier, 67 Hun, 203.)

That allegations of information and belief as to the existence of facts are ineffectual as a statement of such facts sufficient to support even a warrant of attachment has many timés been decided. This general and well-recognized rule is stated in Buell v. Van Camp (119 N Y. 160, 165) as follows : “ The mere averment, however, of a fact upon information and belief without more is not sufficient; but the sources of the information and the grounds of the belief must be stated so that the judicial officer to whom the affidavit is presented may judge whether the information and belief have a proper basis to rest on; and if he is satisfied that they have, then the affidavit is sufficient to invoke his jurisdiction and to be submitted to his determination. And such is the rule recognized, we believe, in all the cases on this subject.” That an affidavit upon information and belief will not confer jurisdiction upon the court and authorize the issuance of a warrant for search and seizure under a statute having essential features of purpose and practice somewhat similar to those of the statute now under consideration is held in State of North Dakota ex rel. Register v. M'Gahey (12 N. D. 535), and State of North Dakota ex rel. Register v. Patterson (13 id. 70). That there are cases in other jurisdictions which apparently uphold warrants for search and seizure under statutes of kindred purpose issued upon a complaint or application made on information or belief has.not escaped attention. But it is believed that the practice prescribed in the statutes under consideration in those cases differs so materially from the requirements of tlie statute now under consideration that they are not useful either as precedents or as matters of argument in arriving at our decision.

The order from which the appeal is taken affects a substantial right of the appellant. The warrant directed search of the premises in which the complaint stated appellant kept, stored and had deposited liquors for the purpose of unlawful sale and.distribution. He was served with a copy of the warrant, notice to appear before the magistrate who issued the warrant, and a copy of the receipt. Service of these papers was made upon him, as the order recites, as being the person keeping the property seized. Appellant’s right of possession of the property was unwarrantably interfered with under an unauthorized warrant. “ The dwellings and premises of citizens are under the highest protection against search, and may not be invaded with impunity save on full compliance with all constitutional and statutory requirements.” (Johnson v. Comstock, 14 Hun, 238, 242.) Appellant had apparent right of possession of the property taken. This right was invaded, and the property taken from him by the officer assuming to act under the warrant.. He was invited by the notice served upon him to appear before the •magistrate who issued the warrant a't a specified place and time, and show cause why the property so taken from his possession should not be forfeited to the State of Hew York. Sufficient cause why the seizure and projected forfeiture were unauthorized appeared on the face of the papers themselves. The attention of the magistrate was duly called to that fact. Appellant was then entitled to the order he asked for, vacating and setting aside' the complaint and warrant, and directing the officer who made the .seizure to restore tlie property seized to the possession from which it had been taken. Denial of appellant’s motion denied him the substantial right to immediate possession of the property and immunity from further vexation in an unauthorized proceeding. It is true that the statute in question does not in terms authorize such an application as that which the order appealed from denies; nor on the other hand does it prohibit it. The proceeding under this statute is of the character of those denominated in the Code of. Civil Procedure as special proceedings. (See Code Civ. Proc. § 3334.) Although there is no definite warrant in the statute under which the proceedings are taken for an appeal from an interlocutory order the general rule applicable to-special proceedings should obtain. (Hooker v. City of Rochester 57 App. Div. 530; Matter of City of Rochester [In re Neun], 102 id. 99.)

The order should be reversed and the motion to dismiss granted.

All concurred, except Spring and Kruse, JJ., who dissented, in a memorandum by Spring, J., and voted for dismissal of this appeal.

After the application was made and before the return day, the statute was amended by chapter 281 of the Laws of 1909, which took effect May 4, 1909. —.[Rep.