Romeo v. Monaghan

281 A.D. 976, 120 N.Y.S.2d 267, 1953 N.Y. App. Div. LEXIS 3981

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 7, 1953
• Status: Published

Opinion

— Appeal by respondent, in a proceeding pursuant to article 78 of the Civil Practice Act, from an order granting petitioners’ application (1) to annul the determination of said respondent, which revoked petitioners’ cabaret license, and (2) directing restoration of said license. Order modified on the law by striking out all the ordering paragraphs thereof and by substituting, in lieu thereof, a provision directing a transfer of the proceeding to this Appellate Division for review. As so modified, the order is affirmed, without costs. Upon review of the determination of the respondent, determination annulled, without costs, and matter remitted to the respondent for further proceedings not inconsistent with the views hereinafter set forth. Issues having been raised as to whether there was competent proof of the facts necessary to authorize the making of respondent’s determination and as to the weight of the evidence, the proceeding should have been transferred to this Appellate Division. (Civ. Prac. Act, § 1296.) The findings of guilt as to the first three charges are not supported by competent or substantial evidence. Counsel for respondent has conceded this to be so with respect to the second charge. We are not able to determine whether respondent would have revoked the license upon a finding of guilt on the fourth charge only. Further, the trial of the charges before respondent’s hearing officer was fraught with matter prejudicial to the petitioners, as a result of which it cannot be said that they were accorded a fair hearing. A new hearing should be held, at which petitioners and respondent may, if so advised, produce additional evidence. Nolan, P. J., Carswell, Adel, Wenzel and Beldoek, JJ., concur.