Menick v. Bruckman

255 A.D. 810 | N.Y. App. Div. | 1938

In a proceeding, brought pursuant to article 78 of the Civil Practice Act, to review determination of the State Liquor Authority canceling petitioner’s license to sell beer, wine and liquor for on-premises consumption, declaring forfeiture of bond and directing surrender of license, proceeding sustained on the merits, determination annulled and respondents directed to restore license to petitioner, with fifty dollars costs and disbursements. Revocation for cause must be predicated upon a violation, either of the express provisions of the Alcoholic Beverage Control Law or of regulations promulgated by the Liquor Authority created thereunder which are in conformity with such law and in enforcement of its provisions. No proof was adduced showing such violation with respect to the first and third charges preferred against petitioner. The first charge, to the effect that a hostess induced male patrons to purchase alcoholic beverages, in addition, was shown to have been unfounded by the testimony of the investigator of the Authority who voluntarily accosted such hostess and invited her to drink with him. The fact that she partook of colored water rather than alcohol, for which he paid, does not constitute an “ unfair trade practice ” as set forth in the third charge. The only charge which has as a basis a prohibition contained in the law is the second, to the effect that an intoxicated person was served with beer. Such violation was not proved by “ substantial common-law evidence of probative character.” (Matter of Yates v. Mulrooney, 245 App. Div. 146, 149.) The only proof adduced to support this charge was the bare conclusion of the investigator. No attempt was made to state the facts with respect to an unknown person’s actions, appearance or physical condition, which led the investigator to the conclusion that he was intoxicated, nor to show that from his seat at a table this witness was enabled to make such observation as would justify such a conclusion. Lazansky, P. J., Hagarty, Johnston, Taylor and Close, JJ., concur.