January 31, 1950.
Appeal from Appellate Division of the Supreme Court in the First Judicial Department.
The answer of the authority indicates that in reaching its determination of petitioner's guilt it considered and apparently partly relied on evidence as to the past record of the premises, which evidence was not properly adduced and developed at the hearing and petitioner given an opportunity to meet it.
It was brought out at the hearing that petitioner had previously appeared before the authority and had been cautioned, but nothing was shown as to the occasion for such cautioning or ground for introducing it into evidence.
There was also attached to the answer of the authority a report of investigation purporting to give a disorderly record of the premises, which record was not offered in evidence or brought to the attention of petitioner prior to the determination of the authority or the institution of this proceeding.
Under the circumstances we think this matter should be remitted to the authority for a new hearing for the proper introduction and development of any evidence it may wish to introduce in addition to the evidence relating to the one occasion which was the subject of the charge, and a redetermination made on the basis of the evidence, and only the evidence, properly introduced at the hearing.
Determination unanimously annulled and matter remitted to the New York State Liquor Authority for a new hearing in accordance with this opinion.
Peck, P.J., Dore, Cohn, Callahan and Shientag, JJ., concur.
Determination unanimously annulled and the matter remitted to the New York State Liquor Authority for a new hearing in accordance with the opinion herein.