The People of the State of New York, Respondent, v. Morris Kohn, Appellant

The People of the State of New York, Respondent, v. Morris Kohn, Appellant. Second Department, November 23, 1910. Crime — disorderly house — proof not justifying conviction. Appeal from a judgment convicting the defendant of the crime of keeping a disorderly house. Evidence examined, and held, that although the house was shown to be disorderly there was no competent evidence that the defendant maintained it. :' Appeal by the defendant, Morris Kohn, from a judgment of the Court of Special Sessions of the Second Division of the city of New York, rendered against the defendant on the 25th day of April, 1910, convicting him of tlie crime of keeping and maintaining a disorderly house. Herbert S. Worthley, f.or the appellant. Peter P. Smith [ John F. Glárice with him on the brief], for the respondent. - • [MAJORITY — Woodward, J".:] Woodward, J".: There is no qiiestion raised upon this appeal that the conditions testified to by the witnesses for the People constituted the" crime of keeping and maintaining • a disorderly placethe difficulty is that there is no competent evidence that the defendant kept and maim tained the .place. The only testimony to- connect tlie defendant with ■ the crime is that of- a police officer, who testified, over the defendant’s objection and exception that he knew the defendant’s connection with the. placó; that he was proprietor; but being further-questioned by ,1ns own counsel he'admitted that he had never talked with the defendant about it, and that the only way lie knew was- that he asked the bartender at this place, 23 Boerum place, borough of Brooklyn,'and the ■ bartender told him that Mr. Kohn was, and that Mrs: Kohn came in and asked him for the keys' so that she could get some change',, arid ■ that lie also saw. defendant ■ straightening out some chairs. The testimony as to what the bar- - ■ tender told the witness wa's struck out, so that there is barely the assertion of this ope policeman that he knew that lie was proprietor, and this was" shown to be based wholly upon hearsay evidence, There is'certainly nothing in the fact that a man’s wife came in and asked him for the keys that she might make change, which would show that lie was proprietor.; -he may have had them simply for safekeeping- for all that appears.' Opposed to this testimony is the positive testimony "of the defendant’s wife that “ The license is in my name. The -license has been in my name two years come October. I am the proprietor and owner of that business.- *' * * I am . the only Owner that there is to that business. For the last two years ■ the license is in my name, so I’m .in charge and the- control of the business." It is a fact that I am' in control physically; * *' * that .place, belongs to me. I buy the provisions that go into the - • kitchen. I pay the money. Í buy the beer and the liquor. I.pay the bills. I pay the rent. " * * - * When the lease was made five'' .-years ago. it. was made in ,Mr.- Kohn’s name arid was no new lease .made yet. That was before I married him. I -pay the rent now.” She is corroborated as to the license by the People’s witness, and the defendant corroborates her as to the ownership and control of the business. The place in question is concededly a licensed liquor saloon, and under the* requirements of subdivisions 1 and 2 of section lo of the Liquor Tax Law (Consol. Laws, chap. 34; Laws of 1909, chap. 39) it is necessary to have a sworn statement of the “ name and residence of every person interested or to' become interested in the traffic in liquors for which the statement is made,” and the “name of each applicant, and if there be more than one and they be partners, also their partnership name, and the age and residence of the several persons so applying, and the fact as to his citizenship.” It would seem, therefore, that there must be record evidence back of the certificate. showing who is the owner and controller of the place, and the certificate would seem to be rather a high character of proof of proprietorship. We are of the opinion that the evidence does not properly connect the defendant with the crime charged, and that the judgment of conviction should be reversed, and a new trial granted. Hirsohberg, P. J., Jenks, Thomas and Rich, JJ., concurred. Judgment of conviction of the Court of Special Sessions reversed and new trial ordered.