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In re Erin Wine & Liquor Store, Inc.

Supreme Court of New York, Appellate Division

March 16, 1954

In the Matter of ERIN WINE & LIQUOR STORE, INC., Petitioner,
v.
JOHN F. O'CONNELL et al., Constituting the State Liquor Authority, Respondents.

Page 444

PROCEEDING under article 78 of the Civil Practice Act (transferred to the Appellate Division of the Supreme Court in the first judicial department by an order of the Supreme Court at Special Term, entered in New York County), to review a determination of respondents, constituting the State Liquor Authority, suspending petitioner's retail liquor store license for a period of twenty days.

COUNSEL

Louis Rivkin of counsel (Morris Rosen and Irwin Reicher with him on the brief; Rivkin & Rosen, attorneys), for petitioner.

Robert W. Corcoran of counsel (Emanuel D. Black with him on the brief; Alvin McKinley Sylvester, attorney), for respondents.

BREITEL, J.

In this article 78 proceeding petitioner, a package store licensee, seeks to annul a determination by the State Liquor Authority that it has violated the provisions of law forbidding sales of alcoholic beverages to a minor. The issue is whether there was substantial evidence to support the determination. We find that there was none.

Two youths, one three weeks under eighteen years of age, the critical age limit under the law (Alcoholic Beverage Control Law, ยง 65), and the other, over eighteen years of age, on May 28th entered licensee's premises. Two bottles of liquor were purchased and the price paid. If a sale was made to the one under eighteen, the violation was made out. If the sale was made to the one over eighteen, there was no violation. If it does not appear to which of the two the sale was made, there is no proof that the law was violated.

Since all questions of credibility should be resolved in favor of the Authority, every bit of evidence supporting the Authority's case should be considered, and any contradictory evidence offered by the licensee should be disregarded (Matter of Radigan v. O'Connell, 304 N.Y. 396).

On May 28, 1953, before entering the liquor store the two youths were outside on the street with a group. The one under eighteen, Stinner, received money collected from his companions. The two youths then entered the store. The police officer, who had been observing the pair, did not see who asked for the liquor or who paid the money; but did see the underage minor, Stinner, pick up from the counter the bag containing two bottles of liquor and leave. The police officer then stopped Stinner and his companion and returned with Stinner to the store. He told licensee's clerk that he had sold liquor to a minor. The

Page 445

clerk responded, according to the police officer, that the two boys had been in the night before and that one of them had shown a draft card, indicating that he was over the age limit. He did not expressly deny that he had sold the liquor to an underage minor as the officer accused him. The officer's testimony varied between his direct and cross-examination; but on his cross-examination, he made it quite clear that the clerk had said that the overage young man had exhibited the draft card and not the underage Stinner. But regardless of what happened on May 27th, the police officer further testified that the clerk did not say which of the two ordered the liquor on May 28th, the date of the alleged violation. The officer verified that Stinner's companion had a draft card and that he was over eighteen years of age.

The licensee's clerk testified that the sale the night before, on May 27th, was made to the overage boy, and that on May 28th, the liquor was ordered by the same overage boy. When he finished making up the package the purchase money was lying on the counter, he further testified, and the package and the change were picked up from the counter by one or the other of the young men, he did not know which. On cross-examination he said he thought that on May 28th it was the younger of the two men who picked up the package from the counter, although he still did not recall who picked up the change.

In any other context none would argue that there was proof that one or the other of the youths was the purchaser of the liquor. There would simply be a failure of proof. The only question then is whether under the regulatory statute any different result should follow.

It is clear that in order to protect minors the risk of sales to underage minors is on the licensee ( Matter of Barnett v. O'Connell,279 A.D. 449). Thus, the fact that Stinner was about six feet tall and weighed between 175 and 185 pounds, or that the clerk believed or had reason to believe he was over the age limit, is immaterial. But it is still requisite to prove that the alcoholic beverages were 'sold, delivered or given away' to the underage minor. It is not illegal for a sale to be made to an adult accompanied by an underage minor, nor does any presumption of law or fact arise therefrom as to whether the sale was made to either or both. There might have been evidence that the sale was ...


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