§ 123 — Injunction for unlawful manufacturing, sale or consumption of liquor, wine or beer

§ 123. Injunction for unlawful manufacturing, sale or consumption of\nliquor, wine or beer. 1. (a) If any person shall engage or participate\nor be about to engage or participate in the manufacturing or sale of\nliquor, wine or beer in this state without obtaining the appropriate\nlicense therefor, or shall traffic in liquor, wine or beer contrary to\nany provision of this chapter, or otherwise unlawfully, or shall traffic\nin illegal liquor, wine or beer, or, operating a place for profit or\npecuniary gain, with a capacity for the assemblage of twenty or more\npersons, shall permit a person or persons to come to such place of\nassembly for the purpose of consuming alcoholic beverages without having\nthe appropriate license therefor pursuant to section sixty-four-b of\nthis chapter, the liquor authority or any taxpayer residing in the city,\nvillage or town in which such activity is or is about to be engaged or\nparticipated in or such traffic is being conducted, or the city, town or\nvillage, may present a verified petition or complaint to a justice of\nthe supreme court at a special term of the supreme court of the judicial\ndistrict in which such city, village or town is situated, for an order\nenjoining such person engaging or participating in such activity or from\ncarrying on such business. Such petition or complaint shall state the\nfacts upon which such application is based. Upon the presentation of the\npetition or complaint, the justice or court shall grant an order\nrequiring such person to appear before such justice or court at or\nbefore a special term of the supreme court in such judicial district on\nthe day specified therein, not more than ten days after the granting\nthereof, to show cause why such person should not be permanently\nenjoined from engaging or participating in such activity or from\ncarrying on such business, or why such person should not be enjoined\nfrom carrying on such business contrary to the provisions of this\nchapter. A copy of such petition or complaint and order shall be served\nupon the person, in the manner directed by such order, not less than\nthree days before the return day thereof. On the day specified in such\norder, the justice or court before whom the same is returnable shall\nhear the proofs of the parties and may, if deemed necessary or proper,\ntake testimony in relation to the allegations of the petition or\ncomplaint. If the justice or court is satisfied that such person is\nabout to engage or participate in the unlawful traffic in alcoholic\nbeverages or has unlawfully manufactured or sold liquor, wine or beer\nwithout having obtained a license or contrary to the provisions of this\nchapter, or has trafficked in illegal liquor, wine or beer, or, is\noperating or is about to operate such place for profit or pecuniary\ngain, with such capacity, and has permitted or is about to permit a\nperson or persons to come to such place of assembly for the purpose of\nconsuming alcoholic beverages without having such appropriate license,\nan order shall be granted enjoining such person from thereafter engaging\nor participating in or carrying on such activity or business. If, after\nthe entry of such an order in the county clerk's office of the county in\nwhich the principal place of business of the corporation or\ncopartnership is located, or in which the individual so enjoined resides\nor conducts such business, and the service of a copy thereof upon such\nperson, or such substituted service as the court may direct, such\nperson, copartnership or corporation shall, in violation of such order,\nmanufacture or sell liquor, wine or beer, or illegal liquor, wine, or\nbeer, or permit a person or persons to come to such place of assembly\nfor the purpose of consuming alcoholic beverages, such activity shall be\ndeemed a contempt of court and be punishable in the manner provided by\nthe judiciary law, and, in addition to any such punishment, the justice\nor court before whom or which the petition or complaint is heard, may,\nin his or its discretion, order the seizure and forfeiture of any\nliquor, wine or beer and any fixtures, equipment and supplies used in\nthe operation or promotion of such illegal activity, including any bar,\nbar or refrigeration equipment, vending machines, gaming machines and\njukeboxes, and such property shall be subject to forfeiture pursuant to\nthe provisions of subdivision two of this section. Costs upon the\napplication for such injunction may be awarded in favor of and against\nthe parties thereto in such sums as in the discretion of the justice or\ncourt before whom or which the petition or complaint is heard may seem\nproper.\n (b) The owner, lessor and lessee of a building, erection or place\nwhere alcoholic beverages are unlawfully manufactured, sold, consumed or\npermitted to be unlawfully manufactured, sold or consumed may be made\nrespondents or defendants in the proceeding or action.\n 2. (a) This seized property shall be delivered by the peace officer,\nacting pursuant to his special duties or police officer having made the\nseizure to the custody of the authority or the district attorney of the\ncounty wherein the seizure was made as may be directed by the court,\nexcept that in the cities of New York and Buffalo, the seized property\nshall be delivered to the custody of the authority or of the police\ndepartment of such cities, together with a report of all the facts and\ncircumstances of the seizure.\n (b) It shall be the duty of the authority or such district attorney\nor, if the seizure was made in the cities of New York or Buffalo, of the\nauthority or corporation counsel of such city, as the case may be, to\ninquire into the facts of the seizure so reported and if it appears\nprobable that a forfeiture has been incurred, for the determination of\nwhich the institution of proceedings in the supreme court is necessary,\nto cause the proper proceedings to be commenced and prosecuted, at any\ntime after thirty days from the date of seizure, to declare such\nforfeiture, unless, upon inquiry and examination the authority or such\nperson, as the case may be, decides that such proceedings can not\nprobably be sustained or that the ends of public justice do not require\nthat they should be instituted or prosecuted, in which case, the\nauthority or such person shall cause such seized property to be returned\nto the owner thereof.\n (c) Notice of the institution of the forfeiture proceeding shall be\nserved either (i) personally on the owners of the seized property or\n(ii) by registered mail to the owners' last known address and by\npublication of the notice once a week for two successive weeks in a\nnewspaper published or circulated in the county wherein the seizure was\nmade.\n (d) Forfeiture shall not be adjudged where the owners established by\npreponderance of the evidence that (i) the use of such seized property\nwas not intentional on the part of any owner, or (ii) said seized\nproperty was used by any person other than an owner thereof, while such\nseized property was unlawfully in the possession of a person who\nacquired possession thereof in violation of the criminal laws of the\nUnited States, or of any state.\n (e) The authority or such person having custody of the seized\nproperty, after such judicial determination of forfeiture, shall, by a\npublic notice of at least five days, sell such forfeited property at\npublic sale. The net proceeds of any such sale, after deduction of the\nlawful expenses incurred, shall be paid into the general fund of the\ncounty wherein the seizure was made except that the net proceeds of the\nsale of property seized in the cities of New York and Buffalo shall be\npaid into the respective general funds of such cities.\n (f) Whenever any person interested in any property which is seized and\ndeclared forfeited under the provisions of this section files with a\njustice of the supreme court a petition for the recovery of such\nforfeited property, the justice of the supreme court may restore said\nforfeited property upon such terms and conditions as he deems reasonable\nand just, if the petitioner establishes either of the affirmative\ndefenses set forth in paragraph (d) of subdivision two of this section\nand that the petitioner was without personal or actual knowledge of the\nforfeiture proceeding. If the petition be filed after the sale of the\nforfeited property, any judgment in favor of the petitioner shall be\nlimited to the net proceeds of such sale, after deduction of the lawful\nexpenses and costs incurred by the seizing party.\n (g) No suit or action under this section for wrongful seizure shall be\ninstituted unless such suit or action is commenced within two years\nafter the time when the property was seized.\n