I heartily concur in what our learned brother has so well said as to the insufficiency of the complaint and accompanying affidavit to authorize the issuance of the warrant in this matter.
With all due deference, however, it does seem to me that no order at all should have been granted, and, having been granted, that it was not appealable. The proceeding to make effective the Liquor Tax Law (Gen. Laws, chap. 29; Laws of 1896, chap. 112, as amd.) by the seizure of liquors stored or deposited for unlawful sale was added to the statute by chapter 350 of the Laws of 1908 as section 31c, and it will he found in the Liquor Tax Law of the Consolidated Laws, and is section 33 of that act. (See Consol. Laws, chap. 34 [Laws of 1909, chap. 39], § 33, as amd. by Laws of 1909, chap. 281.)
The proceeding is founded upon a verified complaint of a. special agent, or of some other officer or person, setting forth facts showing that liquors are kept, stored or deposited in a place specified for the purpose of unlawful sale or distribution, or that there is probable cause that such is the case. Whereupon a justice of the Supreme *302Court or county judge, or other magistrate therein mentioned,. may' issue a- warrant directed to any peace officer, or to a special agent upon his request, requiring that he forthwith search the premises and seize the liquors, if found, and safely keep them. The warrant must contain a notice directed generally to all persons claiming “ any right, title or interest in such liquors to cvppear before the judge or justice issuing such warra/nt’’'’ at a time and place specified, etc. “ At the time and place specified in the notice contained in such warrant, any person, claiming any right, title or interest in the liquors seized under such warrant may interpose an answer controverting the allegations of the complaint upon which such warrant was issued.” If an answer is interposed the issue becomes an action, not against any individual defendant, but against, the property seized.
It will be observed that there is no provision for any motion to be made or for any order to be granted upon the return day. of the warrant. There is no appearance in court, but before the judge or justice at chambers. If the moving papers, which comprise the ■ complaint, fail to state a cause of action, that question can be raised on the trial the same as- in any other case. There does not seem to be any provision for a demurrer, but that is not important here for that course was not pursued. The party appealing did appear and raised a multitude of objections to the proceeding and asked for a dismissal, which was denied.
I do not believe the court had authority to entertain any of these motions. If so, however, no order should be granted either denying the motion or to dismiss the proceeding. If a motion at all is permissible; which I very much doubt, it should be treated as any motion or application or ruling pending the trial.
The proceeding on the return day of the warrant is confined to the interposition of an answer, if any is interposed. If not, then the justice takes-proof as upon a default. If the answer is inter-' posed, eo instcmti the proceeding becomes an action and the authority of the judge at chambers ceases. After the answer is interposed the defendant has all the remedies which may be available after the interposition of an answer in any case. . Every question which he has raised here would be -available to him when the trial day is reached. Ho constitutional right of any one is invaded for *303every right is preserved, and the mere mode of procedure by which his rights are available to him is unimportant. In my judgment, the justice at chambers- has no power to dismiss or to entertain _any application involving the sufficiency of the moving papers.
I think the appeal should be dismissed.
Kruse, J., concurred.
Order reversed, and motion to dismiss proceeding granted..