Misc.] County Court, Erie County, December, 1921. A proceeding under section 802-b is to be treated as a proceeding in rem and not as a criminal proceeding. Clement y. Two Barrels of Whiskey, etc., 136 App. Div. 291; Matter of Geschwinder, 68 Misc. Rep. 97. If the evidence is uncontradicted the court may direct a verdict in favor of the complainant. Clement v. Two Barrels of Whiskey, etc., supra. I think from the above authorities we must consider the case as civil in nature, and that it serves the same purpose in enabling the state to try the title to the property, which has been declared a nuisance by statute, and thus effect its forfeiture, as a replevin action affords means to try title to property between individuals. In this action the state has to prove its case by a fair preponderance of the evidence and not beyond reasonable doubt. It is similar to other statutes that are passed in derogation of common-law rights and should be construed with reasonable strictness. With the above observations in mind, we proceed to a discussion of the objections raised by the defendant on the special appearance. The first point raised is that the warrant was granted upon an affidavit and not upon a complaint. I do not think this objection is valid. The same information is found in the affidavit that would be found in the complaint, and it is properly sworn to. It serves its purpose as a pleading just as well in one form as in the other. The next point is that the affidavit does not state facts. In the affidavit Corporal Holcomb swears" he purchased half a pint of liquor for the sum of two dollars. Said intoxicating liquor was received by said deponent from above unknown person and was taken from beneath the bar of above premises by aforesaid person. Deponent verily believes intoxi County Court, Erie County, December, 1921. [Vol. 117. cating liquors are stored, kept, deposited and possessed in and upon said premises in violation of Section 1212 of the Penal Law of the State of New York." He also swears that the R. S. Brown Hotel Company, Inc., is the owner of the premises, and gives as the source of such information the assessment roll for taxing properties for the year 1921 in the assessors' office. The fact that the officer could buy liquor there was sufficient proof that it was kept for unlawful purposes. Incidently it might be mentioned that indictments founded upon said purchase by the officer were found against the man making the sale and the hotel company, or Brown as its manager, and pleas of guilty were entered upon indictments, and substantial fines imposed in each case. The next point raised is that the warrant is too sweeping in its effect, in that it referred only to No. 9 Delaware street, while the officer searched the whole premises occupied by the R. S. Brown Hotel Company. I do not think this objection is sound. The street numbers upon the property in question run from 7 to 17 inclusive. I take it that No. 9 was the general entrance where the patrons of the hotel usually enter. All of the building was used for hotel purposes, and I think the warrant clearly gave right to the officer to search the whole premises. The next point raised is that the affidavit is not sufficient because it does not state the name of the person keeping, storing or depositing the liquor for which search was made. In that respect the affidavit states the person was John Doe, whose name is not known to deponent, and that the R. S. Brown Hotel Company, Inc., was the owner of the premises. I think this is sufficient. The next point raised is that the officer in serving the warrant did not comply with some provision of L Misc.] County Court, Erie County, December, 1921. section 801 of the Code of Criminal Procedure. I do not think that this section has anything to do with the service of the warrant under section 802-b. I think rather that it refers to the service of the warrant provided for under section 792 of the Code of Criminal Procedure. The search warrants are entirely different in character. That one issued under section 792 of the Code of Criminal Procedure is general in its application and criminal in character (People ex rel. Simpson Co. v. Kempner, 208 N. Y. 16), while section 802-b is civil in character, as above stated, and is passed for one specific purpose. It contains within itself a nearly complete system of practice for effecting the purpose for which it was designed, and I think the only sections of the Code of Criminal Procedure which in any way have a bearing upon section 802-b are those that follow it in title 2. The next point raised is that the officer making the search took the property but did not give a receipt for the property taken. It is admitted that the officers making the search left a complete inventory of the property taken, but that it was not signed. It would have been better practice on the part of the officers to have signed it, but as long as it can be identified as the receipt left by the officers making the search its purpose of protecting the rights of the owners of the property seized by giving them a list of the property taken is effected, and the objection raised to the receipt because it was not signed is not tenable. After a careful consideration of the whole case, I do not feel that any of the substantial rights of the parties interested have been violated. There was ample reason for believing that the law was being violated upon the premises, as shown by the fact that the officer purchased intoxicating liquor easily with County Court, Erie County, December, 1921. [Vol. 117. out any questions being asked. The search was made under a warrant duly issued, and in an orderly manner, and an inventory of the property taken by the officers was left upon the premises with the proper person. If my conclusions are right, it follows that the motion to vacate the warrant and for the return of the property seized must be denied, and an order may be entered accordingly. As the objections raised were in the nature of a demurrer, as it existed under our former civil practice, the defendants should be allowed ten days to file an answer raising the issues they wish to have determined upon the trial of the action, and, as provided in the stipulation heretofore entered into, the answer should be filed within ten days after service of the order upon the attorney for the defendants. Motion denied. THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, v. WILLIAM WICKA, Defendant. (County Court, Erie County, December, 1921.) Criminal procedure search warrant — indictment — police power —intoxicating liquors - failure to post copy of warrant upon premises immaterial as to defendant who was personally served — evidence — motion to dismiss indictment denied. The use of a search warrant to prevent and detect crime is a valid exercise of the police power of the state. Section 802-b of the Code of Criminal Procedure, added by chapter 156 of the Laws of 1921, is almost a verbatim re-enactment of section 33 of the Liquor Tax Law (Laws of 1909, chap. 39) and no exact or complete rule governs the service of a warrant issued pursuant thereto. There being no direction in section 802-b of the Code of Criminal Procedure as to when the posting of a copy of a Misc.] County Court, Erie County, December, 1921. search warrant issued thereunder shall be done, an orderly procedure would be the service of the warrant upon the owner or person in charge, the search for and seizure of the liquors, if any are found, making an inventory thereof, giving a receipt for the property and posting a copy of the warrant. As the posting of a copy of the warrant is to give con structive notice to anyone having an interest in the liquor seized or its container who was not present when the seizure was made, the exact time of posting is immaterial provided it is done before the officer leaves the premises searched. Upon and for the purposes of a motion by defendant to vacate and set aside a search warrant issued pursuant to section 802-b of the Code of Criminal Procedure and to dismiss an indictment against him for having unlawfully in his possession cider containing more than one-half of one per cent of alcohol by volume, it was conceded that the information upon which the warrant was issued was sufficient, that the warrant was regular upon its face and that a copy thereof was duly served upon defendant but that no copy of the warrant was posted upon the premises as required by section 802-b of the Code of Criminal Procedure. Held, that defendant had no cause for complaint because of the failure to post the copy of the warrant upon the premises, and his motion to dismiss the indictment will be denied and the liquor seized or so much thereof as is needed for use as evidence may be retained by the proper officials until the trial under the indictment is finally ended, at which time the liquor seized, except such as was properly used for evidence, will be returned to defendant. MOTION to set aside a search warrant and to dismiss indictment. Walter F. Hofheins, assistant district attorney (Guy B. Moore, district attorney), for People. George B. Doyle, for defendant. NOONAN, J. The defendant has been indicted for violating section 1212, subdivision 2, of the Penal Law, unlawfully possessing cider containing more than one |