Barry v. O'Connell

In a proceeding under article 78 of the Civil Practice Act, to review the determination of the State Liquor Authority, disapproving an application by respondent for a license to sell liquor for off-premises consumption, the authority appeals from so much of an order as directs a trial of the proceeding before a court and jury, and denies a motion by the authority to strike out a portion of the petition and an exhibit, annexed to respondent’s reply.' Order reversed on the law, with $50 costs and disbursements, 'and the- proceeding dismissed, without costs. The record discloses sufficient undisputed facts upon which the authority, to which the power to pass on: the - matter is given by statute, could reasonably have decided that respondent’s application for a license should be denied. In view of such undisputed, facts, no triable issue was presented which required determination, and. there was no basis upon which either, a court or jury could decide that the State Liquor Authority acted arbitrarily or capriciously. (Of. Matter of Snetlage v. O’Connell, . 271 App. Div. 1015 , affd. 297 N. Y. 707 ; Matter of Pichaez v. O’Connell, 272 -App. Div. 755, affd. 297 N. Y. 981 ; Matter of Glintenkamp v. O’Connell, 271 App. Div. 795 , affd. 296 N. Y. 806 ; Matter of Restaurants *<& Patisseries Longehamps V. O’Connell, 271 App. Div. 684 , affd. 296 N. Y. 888 .) Nolan, P. J-., Carswell, Adel, Sneed and Wenzel, JJ., concur.