
    In the Matter of Conservative Grouping Corp., Respondent, v. Martin C. Epstein et al., Constituting the New York State Liquor Authority, Appellants.
    Argued November 14, 1961;
    decided November 30, 1961.
    
      
      John J. Hyland and Hyman Amsel for appellants.
    
      Stanhope Lacy, Jr., for respondent.
   Per Curiam.

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.  