Farley v. Scherno

Appellate Division of the Supreme Court of the State of New York

Decided November 15, 1911

Appellate Division of the Supreme Court of the State of New York · decided 1911-11-15

Appeal by the defendants, Antonio Scherno and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Clinton on the 1st day of March, 1911, upon the decision of the court rendered after a trial at the Clinton Trial Term, a jury having been waived.

Decided 1911-11-15

Kellogg, J. (concurring in result):

¶1By section 5391 of the United States Revised Statutes, the Federal courts enforce upon territory ceded to the United States within a State the police laws of the State as to acts which under State laws are criminal and for which the United States statutes prescribe no punishment.

¶2If Scheme had not obtained a certificate, he would have been punishable in the United States courts for selling liquor; with the certificate he was not punishable, as the act was in violation of no law of the State and the Federal government imposed no penalty for the sale. He undoubtedly obtained the certificate for this very protection, and it answered the purpose for which it was obtained. Therefore, he cannot urge that there was no consideration for the bond upon which it issued.

¶3Judgment affirmed, with costs. .