Opinion
June 29, 1943.
Present — Crosby, P.J., Taylor, Dowling, Harris and McCurn, JJ.
Order so far as appealed from affirmed, without costs. Determination annulled, without costs, and matter remitted to the State Liquor Authority to proceed in accordance with the memorandum. Certain findings of fact disapproved and reversed and new findings made. Memorandum: From the measurements, not in dispute, it appears that it is 221.23 feet, measured in a straight line, from the center of the nearest entrance of the church in question to the center of the nearest entrance of the petitioner's premises and 187.34 feet from the center of the nearest entrance of the rectory to the center of the nearest entrance of the petitioner's premises. Under subdivision 7 of section 64 Alco. Bev. Cont. of the Alcoholic Beverage Control Law, the petitioner was entitled to a license on the facts, unless the rectory was used exclusively as a place of worship. The fact that the rectory and the church were owned by the church corporation and stood on the same lot and that the pastor of the church and his family lived in the rectory, rent free, and that some informal meetings were held in the rectory, was not proof that the rectory was used exclusively for church purposes. The proof indicated that it was a family residence and nothing more. All the regular public church services were held in the church itself. The rectory was taxed from year to year and exempted to the extent of $2,000 because of the fact that it was the pastor's private residence. There is a preponderance of proof against the finding of the State Liquor Authority that the rectory was used exclusively for church purposes. (See People ex rel. Hutchinson v. Collison, 6 N.Y.S. 711; People ex rel. Church of St. Mary v. Feitner, 168 N.Y. 494; State ex rel. Church of Redeemer v. Axtell, 41 N.J.L. 117, 119; Comrs. Wyandotte Co. v. First Presbyterian Church, 30 Kan. 620; Matter of Lewis, 26 Misc. 532; Matter of McKusker, 23 Misc. 446; St. Thomas' Church v. Board of Excise of City of New York, 20 N.Y.S. 831; Notes, 96 A.L.R. 778-782.) When the petitioner made his second application for a license, the Cedar Street entrance to his premises had been definitely closed and was no longer to be considered as an entrance. ( Matter of Purdy, 40 App. Div. 133.) There was also a preponderance of proof against the finding that the petitioner made a false material statement in his application for a license, filed on October 2, 1941, relative to the distance his premises were from a church. The determination of the State Liquor Authority should be annulled and vacated and the State Liquor Authority should be directed to issue a license to the petitioner as requested. All concur. (Proceeding transferred to this court to review the action of the respondents in denying petitioner's application for a liquor license. The order is the order of transfer.)