Rheims Valley Wine Co. v. Bruckman

256 A.D. 203, 9 N.Y.S.2d 436, 1939 N.Y. App. Div. LEXIS 4685

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 3, 1939
• Status: Published

Opinion

Per Curiam.

The relief sought by petitioner herein was to compel the performance of what it claimed was a ministerial act. It did not seek to review a determination of the New York State Liquor Authority. The proceeding was in the nature of what was formerly termed mandamus, and not certiorari.

However, the petition herein should have been dismissed for the reason that it failed to show that a clear legal right existed to the remedy sought. The petition alleged that the reason given by the Authority for refusing to issue the license was that the premises for which it was sought were on the street level, and it appears that licenses of the kind involved were not issued to such premises. The petition failed to show that in fact the premises were not on the street level, merely stating that petitioner was willing to make them conform to the requirements of the law.

Under the circumstances it did not appear that the New York State Liquor Authority acted capriciously or on the basis of false information; nor did petitioner show that the license was not denied as a matter of the Authority’s discretion. In the absence of such a showing the petition should have been dismissed.

The order should be reversed, with twenty dollars costs and disbursements, and the cross-motion of the defendants for a final order dismissing the petition of the Rheims Valley Wine Co., Inc., granted, without prejudice to a renewal of the application on proper papers. . I . . ....

Present— O’Malley, Townley, Does, CoHNand Callahan, JJ.

Order unanimously reversed, with twenty dollars costs and disbursements, and the cross-motion of defendants for a final order dismissing the petition of the Rheims Valley Wine Co., Inc., granted, without prejudice to a renewal of the application_by petitioner on proper papers.