
    In the Matter of San Anita Wine Corp., Petitioner, against John F. O’Connell et al., Individually and as Members of the State Liquor Authority, Respondents.
   Proceeding pursuant to article 78 of the Civil Practice Act to annul an order made by respondents, which order found that petitioner, a winery licensee, had committed five certain violations of provisions of the Alcoholic Beverage Control Law, suspended petitioner’s license for a period of ten days, and demanded the penal sum provided for in the petitioner’s bond, which had been executed in connection with the issuance of the license, in the sum of $2,500. The first charge is insufficient, as a matter of law, to constitute a violation of subdivision 3 of section 101-b of the Alcoholic Beverage Control Law. It does not allege that no schedule as contemplated by said subdivision was filed; and the prohibition against the sale of a brand wine was not evoked by the mere fact that the petitioner, as a seller, had not filed a schedule. In our opinion, the findings as to the second and third charges are not supported by any substantial evidence. Although the findings as to charges 4 and 5 have support in the record, it is our further opinion that the action taken by the board, if based solely upon these two charges, would constitute excessive punishment. Under the circumstances, the respondents should be given an opportunity again to pass on the matter of punishment for the violations embraced in charges 4 and 5. Determination annulled, without costs, and the proceeding remitted to respondents for the purpose of fixing the degree of punishment to be administered upon the fourth and fifth charges. Nolan, P. J., Johnston, Sneed, Wenzel and MacCrate, JJ., concur.  