
    In the Matter of the Application of Gus Conomon, Petitioner, for a Certiorari Order against New York State Liquor Authority, Respondent.
    Present — Martin, P. J., Untermyer, Dore, Cohn and Callahan, JJ.; Untermyer, J. dissents; dissenting opinion by Untermyer, J.
   Untermyer, J.

(dissenting). The rule is settled that, although heresay evidence is admissible in such proceedings as these, the charge must be sustained by common-law proof and without relation to hearsay evidence. (Matter of Carroll v. Knickerbocker Ice Co., 218 N. Y. 435; Matter of Yates v. Mulrooney, 245 App. Div. 146.) In determining whether the charge was sustained, we must, therefore, disregard the statements made to Patrolman Seltenreieh. We must also disregard the minutes of his testimony in the Magistrates’ Court, which in this proceeding would likewise be hearsay and which, furthermore, were not offered in evidence before the Commissioner. Limiting ourselves to the common law proof, all that remains is that on one occasion Seltenreieh observed several women on the premises, who at other times and places he knew to have received from some other restaurant a share of the proceeds of food or drinks. This evidence is wholly insufficient to sustain the charge against the petitioner that he engaged in that practice.

The determination should be annulled.  