UNITED STATES v. LOT OF WINE AT 1914 DALY AVE. (FELLA, Claimant)

UNITED STATES v. LOT OF WINE AT 1914 DALY AVE. (FELLA, Claimant). District Court, S. D. New York. April 3, 1928. Charles H. Tuttle, U. S. Atty., of New York City. John A. Bolles, of New York City, for claimant. [MAJORITY — THACHER, District Judge.] THACHER, District Judge. It being stipulated that the search was unlawful, seizure of the res necessarily falls, and this entire proceeding, together with the right to hold the res, falls with it. U. S. v. Specified Quantities of Intoxicating Liquors (C. C. A.) 7 F.(2d) 835. That part of section 33 of title 2 of the National Prohibition Act (27 USCA § 50), which imposes upon one who possesses liquor in his home the burden of proving “in any action concerning the same” the legality of his possession, can have no application here, because in legal effect and within the meaning of the statute there is no action pending. U. S. v. A Quantity of Intoxicating Liquors (D. C.) 289 F. 278. Consequently, no burden is imposed upon the claimant, from whom the res was unlawfully taken, to prove the legality of his possession. Motion granted.