Moschini v. O'Connell

Appellate Division of the Supreme Court of New York

Moschini v. O'Connell

276 A.D.2d 838

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 20, 1949

StatusPublished

This text of 276 A.D.2d 838 (Moschini v. O'Connell) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

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

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Opinion

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.]

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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.]

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276 A.D.2d 838, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moschini-v-oconnell-nyappdiv-1949.

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