Opinion
Argued November 14, 1961
Decided November 30, 1961
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department.
John J. Hyland and Hyman Amsel for appellants.
Stanhope Lacy, Jr., for respondent.
While we believe that the bartender in charge of the licensed premises was, at the time, a responsible agent or representative of the petitioner, we regard the evidence as to whether he knew or should have known of the prescribed activities in the licensed premises as too insubstantial to sustain the charge that the licensee had suffered or permitted gambling on the premises in violation of the Alcoholic Beverage Control Law (§ 106, subd. 6; Matter of Hoban Sullivan v. New York State Liq. Auth., 304 N.Y. 712; Matter of Lynch's Bldrs. Restaurant v. O'Connell, 303 N.Y. 408; Matter of Avon Bar Grill v. O'Connell, 301 N.Y. 150).
The order should be affirmed, with costs.
Judges DYE, FROESSEL, VAN VOORHIS and FOSTER concur in Per Curiam opinion; Chief Judge DESMOND and Judges FULD and BURKE dissent and vote to reverse and to reinstate the determination of the State Liquor Authority upon the ground that it is supported by substantial evidence.
Order affirmed.