Fulton Restaurant, Inc. v. Quinn

253 A.D. 740, 300 N.Y.S. 779, 1937 N.Y. App. Div. LEXIS 5415

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 17, 1937
• Status: Published

Opinion

In a proceeding brought pursuant to the provisions of article 78 of the Civil Practice Act (Laws of 1937, chap. 526), including section 1300 of that act, to compel those respondents-appellants who are members of the New York City Alcoholic Beverage Control Board, to receive petitioner’s application for a restaurant liquor license made pursuant to section 64 of the Alcoholic Beverage Control Law, and to perform, in relation to that application, duties specifically enjoined upon them by section 64 and section 43 of that law, order granting application affirmed, with ten dollars costs and disbursements. The duties of the city board to receive the petitioner’s application for a license and to proceed thereon in accordance with the statute (§ § 64 and 43) are purely ministerial and performance, to the extent of compelling action by the city board as contemplated in the statute, may be compelled judicially. (Civ. Prac. Act, § 1300.) The resolution of the other respondents-appellants here, members of the State Liquor Authority, adopted June 3, 1937, furnishes no legal excuse to the city board for failure to perform the duties enjoined by statute in relation to petitioner’s application for a license. Hagarty, Davis, Adel, Taylor and Close, JJ., concur.