Opinion
May 6, 1965
Appeal by the plaintiffs from an order dismissing their complaint on the merits. The plaintiffs, licensees of retail liquor package stores, moved for summary judgment. The complaint demands judgment "declaring that the amendment to Rule 17 [9 NYCRR 42.1] of the Rules of the defendant State Liquor Authority, effective December 1, 1964, is invalid and void" and incidental injunctive relief. We cannot presume prospectively that the defendants will act illegally or improperly in the issuance of licenses or that the rule attacked will affect a determination as to whether any particular application meets the test of promotion of "public convenience and advantage" or in any manner affect a proper determination. (See Matter of Hub Wine Liq. Co. v. State Liq. Auth., 22 A.D.2d 459.) We agree, however, with the plaintiffs that a declaration should be made as to the rights of the parties ( Connecticut Fire Ins. Co. v. Williams, 9 A.D.2d 461, 463; Martin v. State Liq. Auth., 43 Misc.2d 683, 690, affd. 15 N.Y.2d 707). Order modified, by directing entry of judgment in favor of the defendants declaring rule 17 to be constitutional and valid, and by denying injunctive relief and, as modified, affirmed, without costs. Motion for stay denied. Gibson, P.J., Herlihy, Reynolds, Aulisi and Hamm, JJ., concur.