United States v. CIT Corporation, 94.
| Decision Date | 13 December 1937 |
| Docket Number | No. 94.,94. |
| Citation | 93 F.2d 469 |
| Parties | UNITED STATES v. C. I. T. CORPORATION. |
| Court | U.S. Court of Appeals — Second Circuit |
Jos. G. Myerson, of New York City (Joseph G. Myerson and Jeremiah C. Lazar, both of New York City, of counsel), for appellant.
Leo J. Hickey, U. S. Atty., of Brooklyn, N. Y. (Vine H. Smith and J. Wolfe Chassen, Asst. U. S. Attys., both of Brooklyn, N. Y., of counsel), for the United States.
Before MANTON, L. HAND, and SWAN, Circuit Judges.
This is an appeal from a decree denying the claim of the intervener, C. I. T. Corporation, to remit the forfeiture of its interest in a motor car, as assignee of the conditional seller. The facts are as follows. A libel of information was filed against the car on December 10, 1936, alleging that it was found upon premises where liquor was being manufactured with intent to defraud the United States of taxes (section 1184, Title 26 U.S.Code, 26 U.S.C.A. § 1184), and where there was a distilling apparatus, not registered as required by law (section 1162, title 26 U.S.Code, 26 U.S.C.A. § 1162). The car was seized, and on January 11, 1937 the "C. I. T. Corporation" filed a claim to it and an answer. The libellant moved for a decree of forfeiture, and the claimant, by cross motion, for a remission as to its interest; the appeal is taken from the decree granting the libellant's motion and denying that of the claimant. The claimant's answer consented to the forfeiture except as to its own interest, but as to that alleged that on July 21, 1926, the same day when the car was sold to the purchasers, Louis Goldberg and A. Margolis, the conditional seller, a reputable dealer in Brooklyn, assigned its interest to the claimant, which received it in the regular course of its business. Before the contract was executed the claimant investigated the purchasers through "reputable credit investigation agents," learned nothing giving it reason to believe that the car was to be used in violation of law, and bought the contract in good faith. The libellant moved for decree on the theory that the answer had conceded that the car should be forfeited; but that motion was plainly bad. The claimant's cross-motion was supported by an affidavit which the libellant answered, and the court apparently treated the cause as though it was then ripe for decree. That was of course erroneous unless both parties consented to try it on affidavits; but since they have both done so, and the affidavits do not materially conflict in point of fact, we will disregard the irregularity and decide the case as though it had come up upon final hearing as it should have.
The claimant's affidavit declared that its investigating agents learned that Goldberg was employed as a plumber, had a bank account, was married, had two children, and had been a satisfactory tenant; that Margolis had owned a house for ten years, had a good reputation, was thought to be a man of considerable means, had a bank account and was the president of a mineral water company which had a good rating. To this the libellant's affidavit replied that an investigator of the federal "Alcohol Tax Unit" had interviewed Margolis, who told him that he signed the contract only because his daughter was married to Goldberg's younger brother; that Goldberg was not regularly employed; that almost a year before the purchase he was being investigated by the "Unit" as to the operation of a still on the premises where the car was later seized; that the claimant had made no inquiry at the "Unit"; and that if it had, it would have learned the facts alleged. There is no other evidence that either Goldberg or Margolis had the "reputation" of having violated the liquor laws, nor was the proof of any "record" to that effect. The judge thought that the claimant had not made out its case for remission under section 40a (b) of title 27 U.S.Code (27 U.S.C.A. § 40a (b), denied its motion, and granted the libellant's.
Section 40a (a) gives the district court...
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