(211 N.Y.S.) in the basement of premises known as No. 209 West Fifty-First street,” for the purpose of enjoining and abating a public and common nuisance, as defined in sections 21 and 23 of title 2 of said act (U. S. Comp. St. Ann. Supp. 1923, §§ 101382jj, 101382) "which are now being committed by the defendants." To that complaint the defendants, by their attorney, appeared and interposed an answer, denying so much of the complaint as alleged that a public and common nuisance existed on the ground floor and basement of the said premises, and also denying so much of the complaint as alleged that there is no adequate remedy therefor, except in a court of equity, and alleging denials upon information and belief of other allegations, and raising certain affirmative defenses as to the jurisdiction of the court, the constitutionality of the act, and the right to a trial by a jury, and demanding judgment that the complaint be dismissed. It further appears that on April 16, 1925, a stipulation in writing was signed by the United States attorney for the Southern district of New York and the attorney for the defendants, wherein and whereby the answer of the defendants filed on March 25, 1925, was withdrawn, and the 30-day period, required after the entry of a pro confesso order, before a pro confesso decree can be entered, was waived. Thereafter, and on April 18, 1925, an order was entered that the bill of complaint be taken pro confesso as to said defendants; i. e., Monte Carlo Restaurant, William J. Gallagher, Henry A. C. Taylor, and the Broadway Garden Corporation. On the same day a final decree was entered, by which it was ordered, adjudged, and decreed that the restaurant known as Monte Carlo Restaurant, located on the ground floor and in the basement of the building situated at 209 West Fifty-First street, borough of Manhattan, city of New York, "was at the time of filing the complaint herein a common nuisance," and that an injunction be issued, enjoining the defendants Monte Carlo Restaurant and the Broadway Garden Corporation, their officers, servants, agents, employees, assigns, privies, and representatives, from "manufacturing, selling, bartering, keeping, or storing in said premises, or any part thereof, or elsewhere in the United States of America, any liquor containing one-half of 1 per cent. or more of alcohol, by volume," and that the said premises located as aforesaid "be not occupied or used for the period from the 30th day of April, 1925, to the 30th day of May, 1925," and that the United States marshal for the Southern district of New York be directed to lock and seal all of the entrances and exits to and from the said premises on the 30th day of April, 1925, and to prevent "for the period of one month thereafter the occupation or use of said premises for any purposes whatsoever." On these proceedings in the United States District Court for the Southern district of New York, the landlord bases his allegation in the petition"that, because of the use and occupation of the said demised premises for the conduct of an illegal trade or business, the said landlord has duly termi nated the said letting, and has duly demanded from the said tenant, undertenant, and occupants that they remove from the said premises and deliver up the possession thereof," and the prayer for a final order "removing the said tenant, undertenants, and occupants from the possession of the said premises.' To the petition the tenant and undertenant interposed answers, containing admission of the allegations with reference to the proceedings in the United States District Court for the Southern District of New York, and denials as to the allegations with reference to the decree entered therein, and referring to the said decree as to the subject-matter therein contained. The evidence discloses that the premises were padlocked, in accordance with the said decree, by the United States marshal from April 30, 1925, to May 30, 1925; that on May 1, 1925, the landlord made written demand for the rent for the month of May, 1925; that on May 2, 1925, the tenant sent a check, postdated May 9, 1925, as demanded; and that on May 9, 1925, the landlord returned the check and demanded possession of the premises. At the trial the proceedings were dismissed as against Monte Carlo Restaurant, named as an undertenant, and the pleadings were amended to substitute the name of the Buchanan Restaurant Company, Inc., for the Visalia Restaurant Company, Inc., named as tenant. [1] The landlord submits two propositions-i. e., that the final decree, entered in the proceeding in the United States District Court, constitutes a conclusive determination, which this court must accept, that the demised premises were used for the sale of liquor, in violation of the statute; and that the stipulation by the defendants therein, for the withdrawal of their answer in that proceeding, constitutes an admission, which this court must accept as prima facie proof of the fact, that the demised premises were so used. It is to be noted that, of the defendants named in the proceeding in the United States District Court, the Monte Carlo Restaurant, Henry A. C. Taylor, and the Broadway Garden Restaurant, Inc., are not named as tenant or undertenants in this summary proceeding, and that William J. Gallagher is not named in the final decree in that proceeding as one of the defendants against whom the injunction was issued, and is named as undertenant in this summary proceeding. It is also to be noted that the Visalia Restaurant Company, Inc., and its successor, the Buchanan Restaurant Company, Inc., named as tenant herein, are not named as defendants in the proceeding in the United States District Court. So, as far as the parties are concerned, the final decree and the stipulation made in the proceeding in the United States District Court do not establish the allegations of the petition. herein, either regarded as res adjudicata or as admissions. [2] But there is another objection to the propositions submitted by the landlord. Even if the final decree were an adjudication of a viola (211 N.Y.S.) tion of the National Prohibition Act, and the stipulation for the withdrawal of the answer interposed in that proceeding were an admission of a violation of the National Prohibition Act, it does not follow that such a final decree is an adjudication that the "demised premises are used or occupied * * * for any illegal trade or manufacture, or other illegal business," or that the stipulation for the withdrawal of the answer is an admission that the "demised premises are used or occupied" for such purpose, as provided in the statute under which the summary proceedings is brought. Section 1410, subd. 5, Civil Practice Act. The National Prohibition Act (41 U. S. Statutes at Large, 307, c. 85, tit. 2, § 1; Id. 308, § 3; Id. 316, § 29; Id. 317, § 33 [U. S. Comp. St. Ann. Supp. 1923, §§ 101382, 1013812aa, 10138/2p, 101381⁄2t]) prohibits the manufacture, possession, and sale of liquor containing more than one-half of 1 per cent. or more of alcohol by volume, provides that the possession of liquors by any person not legally permitted to possess liquor shall be prima facie evidence that said liquor is kept for the purpose of being sold, bartered, exchanged, given away, furnished, or otherwise disposed of, in violation of the provisions of the statute, and makes a single act of manufacture, possession, or sale of liquor a violation thereof, subject to the penalties therein provided. Panzich v. U. S. (C. C. A.) 285 F. 871, 873. * However, under the statute of New York (section 1410, subd. 5, Civil Practice Act), to establish that demised premises "are used or occupied * for any illegal trade or manufacture, or other illegal business," there "must be more than a single act of vice." (Tenement House Dept. of City of New York v. McDevitt, 215 N. Y. 160, 164, 109 N. E. 88, 89 [Ann. Cas. 1917A, 455]), and more than "the implication to be drawn from section 33 of title 2 of the National Prohibition Act" (Florgus Realty Corporation v. Reynolds, 123 Misc. Rep. 161, 162, 204 N. Y. S. 303, 304). In other words, the final decree in the United States. District Court, entered pro confesso, and the stipulation for withdrawal of the answer interposed in that proceeding, while they might establish a violation of the National Prohibition Act (41 U. S. Statutes at Large, 317), yet they are not sufficient to establish the right of the landlord in summary proceedings to recover possession of the demised premises, on the ground that the "demised premises are used or occupied * * * for any illegal trade or manufacture, or other illegal business" (section 1410, subd. 5, Civil Practice Act). * * * [3] There is a further objection to the claim of the landlord in this. proceeding. It is well settled, if the violation of the law has ceased before the commencement of summary proceedings to remove the tenant or undertenants, on the ground that the premises are used or occupied for any illegal trade or manufacture, or other illegal business, then no proceedings for the summary removal of the tenant or undertenant can. be taken. Shaw v. McCarty, 2 Civ. Proc. R. 23; Jones v. Demady, 2 211 N.Y.S.-29 McCarty, Civ. Proc. 246. The proceeding in the United States District Court was commenced March 5, 1925, and the final decree was entered pro confesso on April 18, 1925, and the premises were padlocked from April 30, 1925, to May 30, 1925. Obviously, the violation of the National Prohibition Act had ceased on the demised premises before the commencement of the summary proceedings, filed May 12, 1925. Therefore, at the time of the filing of the petition herein, May 12, 1925, the demised premises were not used or occupied for any illegal trade or manufacture, or other illegal business. It follows, therefore, that the landlord has failed to establish the allegations of the petition, and the proceeding must be dismissed, and final order entered in favor of the tenant, awarding possession of the premises. (125 Misc. Rep. 475) In re KILTZ'S WILL. (Surrogate's Court, Schoharie County. July 24, 1925.) 1. Wills 302 (1)—Testimony held to show execution of will with legal formalities, and that will disposed of testator's property. In will contest, testimony held to show execution of will with legal formalities, and that it disposed of testator's property. 2. Witnesses 368-Relationship to deceased husband of contestant and attorney held not to raise presumption of untruthfulness. In will contest, fact that witness was uncle of attorney concerned therein, and was brother of deceased husband of contestant, does not give rise to presumption that he was untruthful. 3. Wills 306-Testimony held to establish that will contained revocation clause. In will contest, testimony of attorney of 25 years' experience in practice held sufficient to establish that will contained revocation clause. 4. Witnesses 219 (3)-Attorney of testator, who subscribed will as witness, held competent to testify concerning execution thereof; privilege of secrecy being waived. In will contest, under Decedent's Estate Law, § 34, relating to revocation, etc., of wills, attorney of testator, who drew will and subscribed it as witness, was competent to testify concerning execution thereof, and that it contained revocation clause; privilege of secrecy being waived. 5. Wills 179-Will, followed by two wills, one of which contained disposition of property inconsistent with first, and other of which contained revocation clause, held revoked. Where will was followed by two wills, one of which contained disposition of property inconsistent with first, and other of which conFor cther cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (211 N.Y.S.) tained revocation clause, it was revoked, and, when never republished, was never revived, and under Decedent's Estate Law, § 41, may not be admitted to probate, though later wills were presumably destroyed with intention of revocation. 6. Wills 290-Wills in possession of testator, when last accounted for and not found after death, presumed destroyed with intention of revocation. Where wills, when last accounted for were in possession of testator, but were not found subsequent to his death, they must be presumed to bave been destroyed by testator with intention of revoking them. 7. Wills w 230-Separation agreement under which wife gave up claim on husband's estate held to prevent her from being person entitled to contest probate of his will. Where wife, on separation from husband, accepted $1 for future care and maintenance, and released husband from obligations therefor, or for alimony, and agreed to make no claim to recover any property from him during his lifetime or from his estate after his death, she was not party in interest entitled to file objections under Surrogate's Court Act, § 147, to probate of will of deceased husband. 8. Husband and wife 278(5)-Smallness of sum paid by husband under separation agreement held not to invalidate agreement. That husband, under separation agreement, paid only $1 to wife, who released him from all obligations and agreed to make no claims against his estate, did not invalidate such agreement. 9. Husband and wife 4-Husband cannot be compelled to support wife except during lifetime. Husband cannot be compelled to support wife except during lifetime. 10. Husband and wife 278 (3)—Agreement of wife to release estate of husband from claims held not contract to alter or dissolve marriage or to relieve husband from liability to support wife. Agreement of wife to release estate of husband from any claims is not contract to alter or dissolve marriage or to relieve husband from liability for support, and such agreement is not forbidden by Domestic Relations Law. 11. Wills 277-Parties represented by attorney, who also represented party having no interest in will contest, held to take benefit of objections filed by such party. Where grandchildren of testator appeared by same attorney who represented testator's wife, and no objections were made by proponents at time of filing her answer and objections as to her not being party in interest, grandchildren must be considered as contestants joining in objections as effectually as if they had filed formal objections, and wife's objections inure to their benefit, although it was subsequently decided that she was not interested party, especially in view of Surrogate's Court Act, § 144, requiring Surrogate to inquire into all facts and circumstances and to be satisfied of genuineness of will. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |