Opinion
276 A.D. 157 93 N.Y.S.2d 104 SAGOS v. O'CONNELL et al. Supreme Court of New York, First Department December 12, 1949
Angelo Sagos, petitioner, made application for a review pursuant to the Civil Practice Act, § 1283 et seq., to revoke the determination of John F. O'Connell and others, as Commissioners constituting the New York State Liquor Authority, respondents, suspending the restaurant liquor license of the petitioner for 20 days because a keg of beer was inadvertently attached to a tap of a different brand of beer by brewery truck driver.
The Supreme Court, Appellate Division, Per Curiam, annulled the determination and remitted the proceeding for further action.
Where keg of beer attached to tap of a different brand, had been inadvertently attached by driver of brewery truck, and licensee neither benefited nor stood to benefit in any way from the error because the price of both brands of beer was the same and the other beer was available, determination of the State Liquor Authority suspending liquor license for 20 days would be annulled by the Appellate Division, and matter would be remitted to the Authority for further action and reconsideration of extent of punishment imposed. Civil Practice Act, § 1283 et seq.; Alcoholic Beverage Control Law, § § 17, subd. 3, 106, subd. 4-a, 121.
Clarence Siegel, New York City, of counsel (George S. Goldberg, New York City, attorney), for petitioner.
Jack Reinstein, New York City, of counsel (Alvin McKinley Sylvester, attorney), for respondents.
Before PECK, P. J., and GLENNON, DORE, COHN, and CALLAHAN, JJ.
PER CURIAM.
The record establishes that a keg of beer was attached by a brewery driver, not an employee of the licensee, to the tap of a different brand and that beer was sold to respondents' investigators from an improperly labelled beer tap in violation of Alcoholic Beverage Control Law, § 106, subd. 4-a. Without any evidence whatever to the contrary, it was also shown that the keg of beer was so attached inadvertently and unintentionally by the driver at the bartender's request and the petitioner neither benefited nor stood to benefit in any way from the erroneously connected tap as the price of both beers was the same and the other beer was available. Accordingly, the record shows an isolated inadvertent instance of a tap being incorrectly connected. In the light of these facts, the punishment imposed appears to be so excessive and so far out of any relation in reason to the type of offense proved as to seem to invite reconsideration, perhaps after taking further testimony. The State Liquor Authority has the power to suspend for cause of license under Alcoholic Beverage Control Law, § 17, subd. 3, and the Supreme Court under Section 121 has the power to review such ‘ suspension’ . In view of the state of facts disclosed in this record, we are warranted in remitting the matter to the Authority for further action and reconsideration of the extent of the punishment imposed herein.
The determination should be annulled without costs and the proceeding remitted to the State Liquor Authority for further action in accordance with this opinion.
Determination unanimously annulled, without costs, and the proceeding remitted to the State Liquor Authority for further action in accordance with the opinion herein. Settle order on notice.
All concur.