Colucci v. O'Connell

283 A.D. 964, 130 N.Y.S.2d 431, 1954 N.Y. App. Div. LEXIS 5928

Opinion

Proceeding under article 78 of the Civil Practice Act, in the nature of mandamus, for an order directing the respondents, who constitute the State Liquor Authority, to rescind their order, under section 113 of the Alcoholic Beverage Control Law, against licensing the subject premises for a period of two years, and to annul their determination denying applications for licenses for the said premises. At Special Term the petition was dismissed on the grounds of failure to show a clear legal right to any relief and that operation of section 113 does not affect petitioners’ rights nor entitle them to attack the constitutionality of the section. Order, made on reargument, unanimously affirmed, with $20 costs and disbursements. We are of the opinion that section 113 of the Alcoholic Beverage Control Law is constitutional. While the appeal in Matter of Colucci v. O’Connell (281 App. Div. 907) was decided without opinion, the question of constitutionality of the statute was considered and passed upon. Present — Nolan, P. J., Adel, MaeCrate, Schmidt and Beldoek, JJ. [See post, pp. 1058, 1103.]