21 Misc. 2d 102 | N.Y. Sup. Ct. | 1959
Proceeding under article 78 of the Civil Practice Act to review the determination of respondent which suspended the petitioner’s liquor license for 10 days. Petitioner, owner of a liquor license, was charged by respondent with violation of section 65 of the Alcoholic Beverage Control Law — sale of liquor to a person actually or apparently under the influence of liquor. After a statutory hearing petitioner was found guilty of the charge and suspension of his license ordered for a period of 10 days. Since petitioner does not appeal from respondent’s determination on the basis of the sufficiency of the evidence but solely on the ground that respondent abused its discretion in imposing a measure of punishment or penalty involved in the determination, this court is limited to that issue. The fact that the criminal charge was dismissed in the Magistrate’s Court and that the Police Department License Bureau also dismissed the charge did not prohibit respondent from finding otherwise (Matter of Lynch’s Bldrs. Restaurant v. O’Connell, 303 N. Y. 408 and cases cited). Nor can those dispositions be considered on this application since petitioner has limited himself to the question raised under subdivision 5-a of section 1296 of the Civil Practice Act. As was stated in Matter of Stolz v. Board of Regents (4 A D 2d 361, 364): “ Under this statute, we now have the power to review the measure of discipline imposed by administrative agencies but this grant of power must be reasonably construed in the light of the settled principles governing the relationship between the courts and administrative agencies. Obviously, the words ‘ abuse of discretion ’ cannot reasonably be given so broad an interpretation as to allow the courts to