Opinion
February 24, 1944.
Samuel Masia and Archibald Palmer for petitioner.
Elvin N. Edwards and Monroe I. Katcher, II, for respondents.
On December 10, 1942, the State Liquor Authority mailed notices to wholesale wine dealers holding retail permits, advising them that the Court of Appeals had ruled that licensees making retail sales to purchasers "must know the purchaser to be a householder and must make delivery at the home of the purchaser." The Authority justifies this act on the basis of an order made by Mr. Justice JOHNSON in Matter of Koppelman v. Sunset Wine Co., Inc., on June 5, 1941, at Special Term of the Supreme Court, Kings County. On appeal this order was affirmed without opinion in the Appellate Division, Second Department ( 263 A.D. 872) and also in the Court of Appeals ( 289 N.Y. 704).
On December 10, 1943, the Appellate Division of this department in Matter of Esposito v. State Liquor Authority ( 267 A.D. 755) flatly held: "We find no provision of the Alcoholic Beverage Control Law which required the licensee to deliver wine which he had sold at retail to a purchaser's home. Consequently specifications 1 and 2 should not have been used by the State Liquor Authority as a basis of revocation." The determination of the Authority was affirmed on other grounds.
Examination of the briefs submitted to the Appellate Division in the above case indicates that the effect of the decision in the Koppelman case was argued by both parties to the appeal.
It is patent that the interpretation given by the Appellate Division to the affirmance of the Koppelman case by the Court of Appeals is at variance with that given to it on September 8, 1943, by Mr. Justice JOHNSON on a motion to resettle the order made by him therein ( 180 Misc. 812 ).
Holding that the unanimous affirmances in the Koppelman case close the question whether the statute, properly interpreted, does require delivery at the purchaser's home and that the Special Term is without jurisdiction to modify the order and make a new decision that the statute does not require such delivery. — [REP.
I have no alternative but to follow the determination of the Appellate Division of this department. Petitioner's motion is granted. Cross motion of respondent to dismiss petition is denied. Settle order.
Subdivision 1 of section 77 Alco. Bev. Cont. of the Alcoholic Beverage Control Law was amended by chapter 796 of the Laws of 1944 (eff. Apr. 14, 1944) by deleting the portion of the subdivision quoted in the statement prefacing this opinion. A new subdivision 2 was also added to section 77, which omits reference to delivery and reads, insofar as pertinent here, as follows: "2. Upon payment to the liquor authority of an additional annual fee of one hundred dollars, the liquor authority may in its discretion and upon such terms and conditions as it may prescribe, issue to a licensed winery upon application therefor a certificate authorizing such winery to sell wine at retail in sealed containers * * * to a householder for consumption in his home, but no sale to such householder. shall be in quantities aggregating more than fifteen gallons. * * *." — [REP.