
    William W. Farley, as State Commissioner of Excise of the State of New York, Appellant, v. Sixteen Bottles of Champagne and Divers Other Liquors (Peter Bleck, Answering), Respondent.
    Third Department,
    November 22, 1912.
    Intoxicating liquors — seizure proceedings — defense — charge — presumptive evidence—when possession of liquors prima facie evidence of keeping them for illegal sale — costs.
    Where in seizure proceedings against a hotelkeeper, the défense is interposed that liquors found in the defendant’s hotel after the town had voted no license were those left on hand at the termination of his license and that they were not being kept for sale, it is error to refuse to charge that the presumption is that these liquors, having been kept in a place not exclusively used for a dwelling, were kept for illegal sale.
    
      The provision of the Liquor Tax Law (§ 33, subd. 4) that in proceedings of this character the keeping of liquors in a place not exclusively used as a dwelling shall be prima facie evidence that they were kept for illegal sale, applies whether they be left on hand when the certificate expires or are procured afterward, or when no certificate has ever existed.
    When they are left oyer after the license to sell expires the rule may not have so great' probative force, but whatever force it has the plaintiff is entitled to it in sustaining the burden of proof.
    Where in such a proceeding the person claiming title to the liquors interposes an answer, the matter becomes a special proceeding in which costs are allowable to the prevailing party under the provisions of section 3240 of the Code of Civil Procedure.
    Smith, P. J., and Betts, J., dissented.
    Appeal by the plaintiff, William W. Farley, as State Commissioner of Excise, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Delaware on the 26th day of March, 1912, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 26th day of March, 1912, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Charles R. O’Connor, for the appellant.
    
      C. L. Andrus, for the respondent.
   Houghton, J.:

The respondent was a licensed hotelkeeper and the town in which his hotel was located voted no license. A year after it became impossible for him to obtain a certificate entitling him to sell liquors complaint was made and his hotel was searched and a quantity of liquors of various kinds was found. He interposed an answer to the seizure proceedings and a trial before a jury was had, terminating in a verdict in his favor. The defense to the proceeding was that the liquors were those left on hand at the termination of his license and that they .were not being kept for sale.

The premises were still being conducted as a hotel and the plaintiff proved that previous to the seizure hard cider had been sold, but the respondent claimed that was not so and that only non-intoxicating liquors were sold.

In a very clear charge the learned trial court pointed out to the jury that the only question for it to determine was whether the liquors were kept for illegal sale, and stated that the burden of showing that they were so kept rested on the plaintiff. At the conclusion of the charge the plaintiff asked the court to charge the jury that “ the presumption is these liquors having been kept in a place not exclusively used for a dwelling, that they were kept there for illegal sale, ” which request was refused.

Subdivision 4 of section 33 of the Liquor Tax Law provides in part as follows: “The keeping of liquors in any building, not used exclusively for a dwelling, in which traffic is prohibited under the provisions of section thirteen of this chapter, shall be prima facie evidence that the same are kept in violation of the provisions of this section.” (Consol. Laws, chap. 34 [Laws of 1909, chap. 39],_ § 33, subd. 4, as amd. by Laws of 1909, chap. 281.)

The request was not that the keeping of these liquors in the respondent’s hotel (a place not exclusively used as a dwelling) "furnished “prima facie evidence ” that they were kept for illegal sale, but that “ the presumption is ” they were so kept. Much refinement might be indulged in as to the strict legal difference between a presumption arising from the facts and the making of those facts prima facie evidence upon the issue involved. Whatever the legal difference may be, it is apparent that the word “.presumption” was used in the sense of prima facie evidence, and that neither the counsel nor the court was misled by the inappropriate form of the request.. This is evidenced by the fact that the court qualified his refusal by saying that he refused to so charge “under the facts in this case,” evidently having in mind that the statute did not apply because the liquors were necessarily left on the respondent’s hands when his license expired and were not procured at a time when he had no right to sell. Quite similar variance in the use of language in a request to charge was involved in Merkley v. Cline (145 App. Div. 692) and" this court concluded the request was sufficient.

The Legislature has declared, in proceedings of this character, that the keeping of liquors in a place not exclusively used as a" dwelling shall be prima facie evidence that they were kept for illegal sale, and we think the rule applies whether they be left on hand when the liquor tax expires or are procured afterward, or when no certificate has ever existed. When they are left over after the license to sell expires the rule may not have so great probative force, but whatever force it has the plaintiff is entitled to the "benefit of it in sustaining the burden of proof.

The plaintiff raises the further question that respondent was improperly allowed costs on judgment being entered in his favor.

While the costs in the present case fall upon our reversal of the judgment, it is proper that we express our views as to the right of the prevailing party to costs in proceedings of this character.

Although the issues tendered are to be tried by a jury as in an action, and although the statute' declares that for certain purposes it shall be deemed an action, it is not such, strictly speaking. After the warrant of seizure has been executed the statute provides that any person claiming title to the liquors may interpose an answer controverting the allegations of the complaint, and upon such answer being interposed the issue thus framed is declared to be deemed an action pending in the court of the judge or justice who issued the warrant, between the Commissioner of Excise of the State and the liquors so seized, and may be so entitled, adding for identification the name of such owner so answering, and the issue is directed to be tried as other issues of fact are tried in such court. (Liquor Tax Law, § 33, as amd. by Laws of 1909, chap. 281, and Laws of 1910, chap. 485.) Such proceeding is civil and not criminal and the action is triable like any civil action in which a trial by jury is a matter of right. (Clement v. Two Barrels of Whiskey, 136 App. Div. 291.)

We are of opinion that upon the interposition of an answer by a person claiming title to the liquors, the matter becomes a special proceeding in which costs are allowable to the prevailing party under the provisions of section 3240 of the Code of Civil Procedure. By the provisions of subdivision 2 of section 27 of the Liquor Tax Law (as amd. by Laws of 1909, chap. 281, and Laws of 1910, chap. 503) relating to revocation and cancellation of a liquor tax certificate, costs may be awarded against the unsuccessful party in such- sums as the justice, judge or court "deems proper; but this particular manner of allowing costs has never been followed by the courts and the proceeding is deemed a special one in which costs have been allowed to be taxed as in a special proceeding. (Matter of Zinzow, 18 Misc. Rep.. 653; Matter of Rasquin, 37 id. 693; Matter of Young, 66 id. 216.) It is true that the statute under consideration is silent with respect to the allowance of costs to either party, but we think by fair intendment that when the Legislature provided that the proceeding should become an action upon, the interposition of an answer, and •that the issue so framed should be tried like any other action, and that it should be entitled to a preference on the calendar, and that judgment therein should be entered, it intended costs should be allowed to the successful party. Such a rule is a salutary one and will tend to deter the interposing of false defenses as well as the prosecution of unfounded complaints.

For the error pointed out, however, the judgment must be reversed and a new trial granted, with costs of appeal to appellant to abide the event.

All concurred, except Smith, P. J., and Betts, J., dissenting on the ground that the prima facie case is rebutted by the fact that the goods were lawfully in the possession of Block at the time the law took effect and that he was not authorized either to sell or give the same away.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.  