Misc.] County Court, Onondaga County, February, 1918.

Irrespective of its exact alcoholic content weiss beer, as determined by the sample analyzed in this case, is "a substance consisting in whole or in part of distilled or rectified spirits, wine, fermented or malt liquors." As we have already seen it is a beverage which, under the ruling of the United States internal revenue department, requires the payment of the tax referred to in the statute. It was within the power of the state to define the liquors which could not be lawfully sold without a license, by reference to the United States governmental decisions. Of course it is not sufficient to show that a beverage known as weiss beer and requiring payment of a government tax is kept for sale or distribution. It is necessary to prove independently, as was done in this case, that the beverage consists in whole or in part of "distilled or rectified spirits, wine, fermented or malt liquors."

Plaintiff also calls attention to subdivision 4 of section 33 of the Liquor Tax Law as follows: "The payment of a retail liquor dealer's or retail malt liquor dealer's special United States internal revenue tax for the place and covering the period in which such liquors are seized, or the maintenance or posting in any place where such liquors are seized, of a retail liquor dealer's or retail malt liquor dealer's special United States internal revenue tax stamp in force and effect at the time of such seizure, or the posting, keeping or maintaining of a notice or sign of any kind on or about the premises where such liquors are seized indicating that liquors are there sold, kept or given away at any place where traffic is prohibited under the provisions of section thirteen of this chapter, or any place for which a liquor tax certificate under section eight of this chapter has not been issued, shall be prima facie evidence that the liquors so seized, as aforesaid, were kept, stored and deposited in violation of the provisions of this section."

County Court, Onondaga County, February, 1918. [Vol. 102.

With reference to this provision also it is to be noted that proof must be made in the first instance that the beverages seized are "liquors " within the definition of the law. When liquors are seized from a place where traffic in liquor is prohibited the fact that a United States internal revenue tax has been paid or a stamp posted in the place of seizure renders proof of the purpose for which they were there kept, stored or deposited unnecessary. As in the present case the liquors were concededly kept for sale in prohibited territory by an unlicensed vendor the provision is unimportant.

Under either of the above provisions referring to the operations of the United States internal revenue department the case really rests upon substantive proof of the nature and constituents of the beverage in question. I have no doubt, as claimant urges, that he has acted in good faith, believing that he had the right to sell weiss beer as he was doing, but the plea of good faith is unavailing. The intent with which a person violates the provision of the Excise Law in question here is not important.

I therefore find that the liquors which have been seized were kept, stored and deposited for the purpose of unlawful sale and distribution within the state, and direct the entry of a judgment of forfeiture, which judgment shall provide for the delivery of such liquors and the vessels in which they are contained to the state commissioner of excise for destruction or sale as he may elect.

So far as the few bottles of American Pilsener beer are concerned, I am satisfied that they were kept for private use in claimant's family without any intention on his part to sell the same. The judgment should, therefore, provide for their return to claimant.

Judgment accordingly.

Misc.] Surrogate's Court, New York County, February, 1918.

Matter of the Estate of LEWIS RADFORD, Deceased.

(Surrogate's Court, New York County, February, 1918.) Surrogate's Court - life

Transfer tax-who not subject to-trusts

Decedent, who died in 1899, gave one-half of his estate in trust for the benefit of a daughter during her life, the remainder to be divided between his son and another daughter, or their issue. The son died before the life tenant leaving him surviving three children and under a decree of the Surrogate's Court one-half of the remainder after the life estate was paid to said children. Held, that the tax on this transfer having been assessed and paid it was not subject to a further tax even though the persons who were the ultimate beneficiaries were not those mentioned in the taxing order.

APPLICATION for an order declaring exempt from taxation amounts paid to certain grandchildren of decedent.

Burlock E. Rabell, for petitioner.

Caldwell & Banister, for Mary R. Burtis.

Lafayette B. Gleason, for state comptrolier.

FOWLER, S. This is an application for an order declaring exempt from taxation the amounts paid to certain grandchildren of the decedent in accordance with the decree of this court construing the will of the decedent and settling the accounts of the trustee. The decedent died in 1899. He gave one-half of his estate in trust for the benefit of his daughter Sarah C. Doty, during her life, the remainder to be divided between his children, William L. Radford and Carrie Westerfield, or their issue. An order was entered assessing a tax upon the entire estate and the remainder after the

City Court of New York, February, 1918. [Vol. 102.

life estate of Sarah C. Doty was taxed against William L. Radford and Carrie Westerfield, each being assessed one-half of the value of the remainder. William L. Radford died before the life tenant, leaving three children him surviving, and by decree of this court one-half of the remainder after the life estate of Sarah C. Doty was paid to the children of William L. Radford. They now ask that their interests be declared exempt from taxation. The property which has been paid to them passed under the will of the decedent herein and the tax on this transfer was assessed and determined by the order entered on the 18th day of January, 1901. It is not, therefore, exempt from taxation, but the tax having been assessed and paid no further tax is assessable upon its transfer, even though the persons who were the ultimate beneficiaries were not those mentioned in the taxing order. The application is therefore denied.

Application denied.

BERNARD SLOAN, Plaintiff, v. MASSACHUSETTS BONDING AND INSURANCE COMPANY, Defendant.

(City Court of the City of New York, Trial Term, February, 1918.)

Insurance against loss by burglary, theft, etc.-fire in apartment below contributing to loss-defendant not liable.

Where by a rider attached to a policy of insurance against burglary, theft or larceny it was agreed that the insurer should not be liable for any loss from or contributed to by fire, water, etc., and in an action on the policy to recover for the loss of certain jewelry and silverware, a part of which was in a box in a locked dresser drawer in plaintiff's apartment, it was found as a fact that a fire which broke out and was confined to the floor below plaintiff's apartment contributed to the loss, there can be no recovery and defendant is entitled to judgment.

Misc.]

City Court of New York, February, 1918.

ACTION to recover on a policy of burglary insurance.

Goldstein & Goldstein, for plaintiff.

William B. McNiece (Albert J. Rifkind, of counsel), for defendant.

FINELITE, J. This action came on for a retrial at a Trial Term of this court, and the parties hereto stipulated and agreed to waive a jury and to submit the case to the court for his decision on the original record, and further stipulated in open court that this is not a submission on an agreed statement of facts, and vested in the court the right to draw such inferences from the evidence presented as he deemed proper and to apply his conclusion thereon.

This action was originally tried on the 8th day of March, 1916, before a justice of this court and a jury, and resulted in a verdict in favor of the plaintiff against the defendant, from which judgment defendant appealed to the Appellate Term, and from the affirmance thereof by the Appellate Term, without opinion, the defendant appealed to the Appellate Division, first judicial department, by leave thereof, where the order of affirmance of the Appellate Term and the judgment in favor of plaintiff were reversed and a new trial ordered. 177 App. Div. 483. The action, therefore, came on for retrial, as aforesaid, before me.

The action is brought to recover on a policy of burglary insurance. The defendant in consideration of the premium paid by plaintiff executed and delivered to him its policy whereby it undertook to indemnify him against loss by burglary, theft or larceny The property covered was contained in plaintiff's apartment on the third floor of No. 29 Columbus avenue, New York city. On January 31, 1914, while the policy