
    In the Matter of Elmarth Bar & Grill, Inc., Respondent, v State Liquor Authority, Appellant.
    Argued March 23,1981;
    decided May 5, 1981
    
      APPEARANCES OF COUNSEL
    
      Stephen D. Kolinsky and Warren B. Pesetsky for appellant.
    
      Eugene V. Natale for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment should be reversed, with costs, and determination of the State Liquor Authority reinstated.

Inasmuch as the express factual finding made by the hearing officer, that the interdicted consumption of alcohol had taken place, would not be sufficient standing alone to support a violation of subdivision 5 of section 106, the question before us is whether the hearing officer found the second element, actual or constructive knowledge by the licensee’s principal or by another in authority. Here, however, the evidence of knowledge, an admission by the president of the licensee corporation that the employee was “having a drink after work”, not only went uncontradicted but the hearing officer expressly found the witness through whom it was introduced to be credible. Therefore, although a formal finding to that effect would have been preferable, we nevertheless may regard the second element as having been imported into the conclusionary finding that the charge was sustained.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

Judgment reversed, etc.  