
    In the Matter of William Gerbino, Petitioner, v. New York State Liquor Authority, Respondent.
   Proceeding under article 78 of the Civil Practice Act, to review and annul the State Liquor Authority’s determination made October 10, 1961, suspending petitioner’s restaurant liquor license for a period of 10 days. By order of the Supreme Court, Kings County, dated November 8, 1961, made pursuant to statute (Civ. Prac. Act, § 1296), the proceeding has been transferred to this court for disposition. The license was suspended upon a finding that petitioner had suffered or permitted gambling on the licensed premises, in violation of subdivision 6 of section 106 of the Alcoholic Beverage Control Law. Determination annulled, without costs. Under all the circumstances of this case, it is our opinion that the evidence as to whether petitioner knew or should have known of gambling on the licensed premises was too insubstantial to sustain the Authority’s finding and determination (Matter of Conservative Grouping Corp. v. Epstein, 13 A D 2d 805, affd. 10 N Y 2d 956; Matter of Stanwood United v. O’Connell, 283 App. Div. 79, affd. 306 N. Y. 749). Ughetta, Kleinfeld and Rabin, JJ., concur; Beldock, P. J., and Brennan, J., dissent and vote to confirm the determination on the authority of Matter of Avon Bar & Grill v. O’Connell (301 N. Y. 150).  