
    Supreme Court, Oswego Special Term,
    March, 1901.
    Reported. 34 Misc. 389.
    Matter of the Petition of John Hunter for an Order Enjoining James M. Caffrey from Trafficking in Liquors Contrary to the Provisions of the Liquor Tax Law.
    Liquor Tax Law—Injunction refused for sale of “beer’’—Presumption of innocence.
    The court will not enjoin a person, alleged, to be trafficking in liquors without having obtained a certificate therefor, from continuing such traffic upon mere proof that he had sold “beer,” without stating the kind of beer, as there is no presumption that the word1 “beer” means fermented or malt liquor or that it is intoxicating.
    Proof that the defendant had made a few sales of intoxicating liquors three months before raises no presumption that he has continued to sell such liquors as against the presumption of innocence which exists in cases where acts are made penal by statute.
    Proceedings under the Liquor Tax Law. Motion to confirm the report of the referee.
    G. S. Piper, for petitioner.
    F. G. Spencer, for defendant.
   Wright, J.

The statute provides, that at the time of the presentation of the petition, “if the court is satisfied that such person is unlawfully trafficking in liquor, an order shall be granted enjoining such, person from thereafter trafficking,” etc. Liquor Tax Law, § 29.

The term “ liquor ” is defined as meaning distilled or rectified spirits, wine, fermented or malt liquors. Id., § 2.

The evidence shows that the defendant sold beer,” but the kind of beer is not stated. The word “ beer ” may mean malt or fermented liquor, or it may mean the unfermented and unintoxicating extract of various roots or plants. There is no presumption that the word “beer” means fermented or malt liquors, or that it is intoxicating. The burden of proof in that regard is on the petitioner. Blatz v. Rohrbach, 116 N. Y. 450.

In this case, therefore, the proof does not establish that any beer was sold in violation of the statute.

The evidence shows that a few sales of intoxicating liquors were made in June, 1900, but the petition was not presented until September. That the defendant violated the statute three months prior to the time of the presentation of the petition fails to establish a violation at the time of that presentation. It is too remote.

The proof of violation should be reasonably near the date when relief is asked. Counsel for the petitioner invokes the principle that a state of things shown to exist is presumed to continue to exist. That principle applies to civil cases. But in cases involving criminal or penal acts, as in this case, that presumption is counter-balanced by the strong presumption in favor of innocence. (Blatz v. Rohrbach, supra.)

The violation mentioned may be the basis of a criminal prosecution and punishment, but the remoteness of the evidence fails to establish the necessity of injunctive action by the court.

The motion must be denied, with a trial fee and costs of this motion, and disbursements to be taxed in favor of the defendant.

Motion denied, with costs.  