
    In the Matter of J. Rosenberg and Sons Tobacco and Confectioners Incorporated, Petitioner, v Harry S. Tishelman, Respondent.
   Determination of respondent, Commissioner of Finance, dated September 20, 1977, which suspended petitioner’s cigarette dealer’s license and cigarette agency permit pursuant to New York City Cigarette Tax Law (Administrative Code of City of New York, ch 46, tit D) for a period of seven days and waiving said penalty "for such time as petitioner continues to obey the cigarette tax law”, unanimously annulled and vacated, on the law, without costs or disbursements, and respondent is directed to dismiss the specifications against petitioner. In this transferred article 78 proceeding we have reviewed the record of the proceeding before respondent. We find that although technical violations of the stamping requirements of the Cigarette Tax Law had occurred during distribution of cartons of cigarettes by petitioner, a wholesaler in the business since 1917, to various retailers in New York City, there was no showing that petitioner had failed to pay any of the taxes due New York City or New York State. In fact petitioner offered proof establishing that the taxes were paid; and this fact was not disputed by respondent. The failure to affix the appropriate stamps or to affix them in the appropriate manner appeared to be due to the malfunction of the specialized machine manufactured for that purpose. On this record, which indicates that the alleged violations involved 85 cartons of cigarettes out of five million stamped by petitioner, we are of the opinion that the commissioner’s determination was not supported by substantial evidence as required and should be annulled and vacated. It is therefore unnecessary to consider the other claims raised herein. Concur—Birns, J. P., Silverman, Evans, Fein and Sullivan, JJ.  