
    George E. Green, as State Commissioner of Excise of the State of New York, Respondent, v. Liquors Seized at No. 1073 First Avenue, Borough of Manhattan, New York City. Gaetano Ingrassia, Appellant.
    First Department,
    July 10, 1916.
    Practice — motion for judgment upon opening of defendant’s counsel — intoxicating liquors — action to have possession of liquors declared nuisance and forfeited—defense — possession under laws of United States for sale in quantities of more than five gallons—evidence — burden of proof — gift of liquors.
    Where at the beginning of a trial the plaintiff’s motion upon the opening of defendant’s counsel for judgment is granted, the same rule is to be applied as where a complaint is dismissed under similar circumstances. In an action under sections 30 and 33 of the Liquor Tax Law to have the possession of liquors declared to be a nuisance and forfeited to the State, the fact that the defendant was lawfully trafficking in liquors at the place where they were seized pursuant to the laws of the United States for the sale of liquors in quantities of more than five gallons at a ■ time is a good defense.
    Evidence examined, and held,, insufficient to sustain the burden of proof which was on the plaintiff to establish that it was the purpose of the defendant to dispose of the liquors in any quantities of less than five gallons at a time.
    The statute is a drastic one and before one’s property can be confiscated under it clear and satisfactory proof of its violation must be presented. A gift of liquors is not unlawful unless made with the intent to conceal an unlawful traffic.
    Appeal by the claimant, Gaetano Ingrassia, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 21st day of March, 1916, upon the verdict of a jury rendered by direction of the court declaring liquors seized at No. 1073 First avenue, New York city, to be a nuisance and forfeited to the State.
    
      Joseph Weber, for the appellant.
    
      T. Channon Press, for the respondent.
   McLaughlin, J.:

This appeal is from a judgment declaring intoxicating liquors seized under section 33 of the Liquor Tax Law (Consol. Laws, chap. 34 [Laws of 1909, chap. 39], as amd. by Laws of 1913, chap. 614) to be a nuisance and forfeited to the State. At the beginning of the trial the attorney for the plaintiff moved, upon the opening of defendant’s counsel, for judgment, which motion was granted. The opening is not set out in the record, but I think the rule to be applied is the one where a complaint is dismissed under similar circumstances. This rule is that the opening is a brief statement of the nature of the action, the issues to be tried and the facts which the party expects to prove. The proof must conform to the pleadings, and it is to be presumed, when such statement is not set forth, that it followed thq pleading under which it was made, and it cannot be assumed, even to support a judgment on appeal, that the opening contained either a fatal admission or anything inconsistent with the allegations of the complaint, as that would be opposed to its nature and a departure from the usual practice.” (Kley. v. Healy, 127 N. Y. 555.)

Here the answer contained denials which required the plaintiff to prove the material allegations of the complaint. The answer also set up, affirmatively, that the defendant was lawfully trafficking in liquors at the place where they were seized, pursuant to the laws of the United States of America for the sale of liquors in quantities of more than five gallons at a time. This certainly would be a good defense if the evidence showed that the defendant was conducting the place where the liquors were found for sale and distribution of liquors of more than five wine gallons at a time.

The judgment is sought to be sustained under section 30 of the Liquor Tax Law (as amd. by Laws of 1910, chap. 494), which provides among other things that it shall not be lawful for any person who has not paid a tax as provided in section 8 of the same law to sell, offer or expose for sale, or give away liquors in any quantity less than five wine gallons at a time. But this section must be read in connection with section 33 of the same law (as amd. supra), which provides in part, liquors kept, stored or deposited in any place in this State * * * for the purpose of sale or distribution therein in violation of the provisions of this chapter, and the vessels in which such liquors are contained, are declared to be a nuisance, and are forfeited to the State when seized, and such forfeiture declared in the manner provided in this section.” So that the question presented is whether the liquors which were seized were stored in the place for the purpose of selling or giving them away in less than five gallons at a time. A single gift of liquors is not, in and of itself, sufficient to prove an unlawful purpose in keeping the liquors when the person who has them has obtained a license which justifies his keeping the same for a lawful purpose. The appellant had obtained a license from the United States government which authorized him to sell in quantities of more than five gallons at a time. His possession, therefore, was legal and the liquors could not be forfeited unless his purpose was to dispose of them in quantities of less than five gallons at a time. The burden of proving that fact was upon the plaintiff. The statute is a drastic one and before one’s property can be confiscated under it, clear and satisfactory proof of its violation must be presented. The fact that the appellant gave away one gallon of wine, under the circumstances indicated by the learned justice who presided at the trial, did not establish that liquors were kept, stored or deposited by the claimant for the purpose of an unlawful sale or disposition. A gift of liquors is not unlawful unless made with the intent to conceal an unlawful traffic. There is no proof that this gift was for that purpose.

The judgment appealed from, therefore, is reversed and a new trial ordered, with costs to appellant to abide event.

Clarke, P. J., Scott, Smith and Page, JJ., concurred.

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