Yates v. Mulrooney

157 Misc. 116, 282 N.Y.S. 956, 1935 N.Y. Misc. LEXIS 1507

• Court: New York Supreme Court
• Decided: August 19, 1935
• Status: Published

Opinion

Horton, J.

This is an application for an order restraining the enforcement of a revocation order made by the State Liquor Authority and affirmed by the Appellate Division, Fourth Department (245 App. Div. 146). The application is based upon the ground that petitioner is about to apply to the Appellate Division for reargument, or for permission to appeal to the Court of Appeals, if necessary, and that the enforcement of the revocation order should be ; stayed until the final determination of either of the above applications. The defendants’ counsel opposes this upon the ground that section 121 of the Alcoholic Beverage Control Law allows a stay in proceedings of this kind for a period not exceeding thirty days, and that the determination of the Appellate Division is not reviewable by the Court of Appeals.

This court is constrained to agree with counsel upon both of these questions. The statute specifically provides “ that no stay shall be granted pending the determination of the matter except on notice to the liquor authority and for a period not exceeding thirty days.” As the purpose of the Legislature was to provide for a summary determination of matters of this kind, the court believes that the statute does not authorize the granting of successive motions for stays for a period exceeding thirty days. Further, it seems to be well established that the Court of Appeals will not review the order of the Appellate Division dismissing the order of certiorari, because such dismissal is the result of an exercise of discretion by the court below. (See People ex rel. May v. Maynard, 160 N. Y. 453; People ex rel. Toms v. Board of Supervisors, 199 id. 150.)

The plaintiff’s motion is, therefore, denied.