In re the Construction of the Will of Burack , 171 N.Y.S.2d 797 ( 1958 )

This proceeding to review a determination made by respondents suspending petitioner’s restaurant liquor license for 10 days for violation of subdivision 6 of section 106 of the Alcoholic Beverage Control Law in that he suffered or permitted gambling on the licensed premises has been transferred to this court. (Civ. Prac. Act, § 1296.) Determination confirmed, without costs. No opinion. Beldock, Acting P. J., Ughetta and Hallinan, JJ., concur; Murphy and Kleinfeld, JJ., dissent and vote to annul the determination and to remit the matter to the respondents for further proceedings not inconsistent with the following memorandum: There was not sufficient proof that the petitioner permitted gambling on the premises. He was not present when the incidente testified to by the officers took place. Although the dismissal of the book-making charge in the Magistrate’s Court is not binding on the respondents, it should be considered where the issue is close, as here. The petitioner's establishment is a neighborhood place and the suspension of his license is a reflection on him and his place of business.