Opinion
Argued June 1, 1923
Decided July 13, 1923
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 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. 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. Here 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.