Moschini v. O'Connell , 276 A.D.2d 838 ( 1949 )

Cohn, J.

(dissenting). Petitioner sought and was granted a hearing to demonstrate that the respondents’ determination was based on a misapprehension of the application. On the hearing petitioner conceded that the description of the physical layout of the proposed premises contained in his application was misleading. Thus through the fault of the petitioner, respondents obtained an erroneous impression as to the physical layout which prompted their action. Accordingly, respondents’ adherence to their refusal to issue a license to petitioner would not be subject to judicial review under section 121 of the Alcoholic Beverage Control Law (Matter of Millman v. O’Connell, 300 N. Y. 539).

The order should accordingly be reversed and the proceeding dismissed.

Peck, P. J., Glennon, Dore and Callahan, JJ., concur in decision; Cohn, J., dissents and votes to reverse and dismiss the proceeding in an opinion.

Order affirmed, with $20 costs and disbursements to the respondent. [197 Mise. 376.]