Opinion
December 8, 1966
Appeal from the Niagara Special Term.
Present — Williams, P.J., Bastow, Henry, Del Vecchio and Marsh, JJ.
Judgment unanimously reversed on the law and facts, without costs, petition dismissed and determination of the State Liquor Authority confirmed. Memorandum: Petitioner and her husband are joint owners of the Whirlpool Bar and Restaurant which before July 4, 1963, was operated by the husband. On that date his liquor license was cancelled because of his failure to notify the Authority of his conviction of a crime. The husband continues to reside on the premises with petitioner. Although the petition alleges that the husband will transfer his interest in the property and business to petitioner and that he will not participate in the business if a license is issued to her, there is no testimony, affidavit or other proof demonstrating that he would not participate in the management and operation of it. The whole record discloses a reasonable basis for the judgment of the Authority that petitioner's operation of the business would not be free from his participation and interest. The refusal to grant a liquor license to petitioner under the circumstances was not arbitrary or capricious. ( Matter of Wager v. State Liq. Auth., 4 N.Y.2d 465.)