Opinion
April 1, 1938.
Present — Martin, P.J., Untermyer, Dore, Cohn and Callahan, JJ.; Untermyer, J. dissents; dissenting opinion by Untermyer, J.
Certiorari order granted out of the Supreme Court on May 4, 1937, and directed to the New York State Liquor Authority, commanding it to certify and return to the office of the New York county clerk all and singular its proceedings had and determination made on January 8, 1937, in canceling the restaurant liquor license heretofore issued to the petitioner for the sale of wine, liquor and beer at retail for the premises located at No. 64 West Fifty-fifth street in the borough of Manhattan, city of New York, and declaring forfeited any refund due said licensee on the surrender of said license, after a hearing pursuant to chapter 478 of the Laws of 1934, as amended, known as the Alcoholic Beverage Control Law.
Determination confirmed, with fifty dollars costs and disbursements to the respondent. No opinion.
The rule is settled that, although heresay evidence is admissible in such proceedings as these, the charge must be sustained by common-law proof and without relation to hearsay evidence. ( Matter of Carroll v. Knickerbocker Ice Co., 218 N.Y. 435; Matter of Yates v. Mulrooney, 245 App. Div. 146.) In determining whether the charge was sustained, we must, therefore, disregard the statements made to Patrolman Seltenreich. We must also disregard the minutes of his testimony in the Magistrates' Court, which in this proceeding would likewise be hearsay and which, furthermore, were not offered in evidence before the Commissioner. Limiting ourselves to the common law proof, all that remains is that on one occasion Seltenreich observed several women on the premises, who at other times and places he knew to have received from some other restaurant a share of the proceeds of food or drinks. This evidence is wholly insufficient to sustain the charge against the petitioner that he engaged in that practice.
The determination should be annulled.