Opinion
November 27, 1951.
Present — Peck, P.J., Glennon, Callahan, Van Voorhis and Shientag, JJ.;
Determination annulled, with $50 costs and disbursements to petitioners. The testimony that one of petitioners' patrons on one occasion surreptitiously solicited a police officer in plain clothes fails to show that the management aided or condoned this act. This man's brother officer testified that he was unaware that this solicitation took place, although the woman while making it sat between the two officers. This single incident was the only basis for revocation of petitioners' license. It was not substantial evidence that such conduct was countenanced or assisted by the licensees ( Matter of Konopka v. Bruckman, 290 N.Y. 777; Matter of Toyos v. Bruckman, 266 App. Div. 28; Matter of Lynch's Bldrs. Restaurant v. O'Connell, 277 App. Div. 705; Matter of Reuben, Inc., v. State Liq. Authority, 268 App. Div. 981, affd. 294 N.Y. 730, followed in Matter of Stevensville Lake Holding Corp. v. O'Connell, 269 App. Div. 804, and in Matter of President on Swan Lake v. O'Connell, 269 App. Div. 805; Matter of Abrams v. Bruckman, 263 App. Div. 593).
Glennon and Callahan, JJ., dissent and vote to confirm. Settle order on notice.