Sagos v. O'Connell

301 N.Y. 212 | NY | 1950

Per Curiam.

We read the order of the Appellate Division herein — which refers to that court’s opinion (Civ. Prac. Act, § 607) and annuls the determination of the State Liquor Authority — as upholding the finding by the Authority that the respondent violated subdivision 4-a of section 106 of the Alcoholic Beverage Control Law and that the annulment of the Authority’s determination directed by such order rests upon the sole ground that the punishment imposed by the Authority was excessive. Upon that single ground the Appellate Division has annulled that determination on the law and has remitted the proceeding to the Authority “for further action and reconsideration of the extent of the punishment imposed herein ”. (Emphasis supplied.)

The suspension of a liquor license is ' one of that type of action by the Authority which is subject to review by the Supreme Court but such review must be in the manner provided by article 78 of the Civil Practice Act. (Alcoholic Beverage Control Law, § 121, subd. 4). Under section 1296 of article 78 we find no provision for the judicial review of the measure of punishment imposed as an incident to disciplinary action ordered by an administrative board such as the Authority where, as in the present case, the Appellate Division has upheld a finding by the Authority of a statutory violation which is made the sole basis for such punishment. (See People ex rel. Morrissey v. Waldo, 212 N. Y. 174, 177-179.)

Accordingly the order should be reversed and the determination of the State Liquor Authority confirmed, with costs in this court and in the Appellate Division.

Appeal taken as of right dismissed on the ground that the order does not finally determine the proceeding within the meaning of the Constitution.

Loughran, Ch. J., Lewis, Conway, Desmond, Dye and Fuld, JJ., concur; Froessel, J., concurs in result.

Ordered accordingly.