
    In the Matter of Dominick Berlingieri, Appellant, against John F. O'Connell et al., Constituting the State Liquor Authority, Respondents.
   In a proceeding to review a determination of the State Liquor Authority which denied an application for a restaurant beer license, the appeal is from an order granting a motion to dismiss the petition on the ground of res judicata. Order reversed, without costs, and motion denied, with leave to respondents to answer within 20 days after the entry of the order hereon. A motion to dismiss an article 78 proceeding, before answer, is in the nature of a demurrer, and only the petition may be considered. Affidavits alleging new matter constituting a defense of res judicata may not be considered; such a defense must be asserted by way of answer (Matter of Felice v. Swezey, 278 App. Div. 958; Matter of Mapes v. Swezey, 278 App. Div. 959; Matter of Foy v. Brennan, 131 N. Y. S. 2d 151, revd. on other grounds 285 App. Div. 669; 22 Carmody-Wait on New York Practice, pp. 484—486). The petition herein is sufficient on its face. Nolan, P. J., Wenzel, Beldoek, Hallinan and Kleinfeld, JJ., concur.  