Opinion
Argued February 17, 1947
Decided February 28, 1947
Appeal from the Supreme Court, Appellate Division, First Department.
Alvin McKinley Sylvester for appellants. J. Bertram Wegman, I. Maurice Wormser, Jesse Moss, Myron L. Shapiro and Robert J. Fitzsimmons for respondents.
Petitioners' restaurant liquor licenses and warehouse permit were cancelled by the State Liquor Authority following a hearing on charges that petitioners had been guilty of violations of the Alcoholic Beverage Control Law. In a proceeding brought to review that determination, the Appellate Division, though sustaining the charges, annulled the determination and remitted the proceeding to the Liquor Authority to receive certain additional evidence, excluded at the hearing, which, in the opinion of the Appellate Division, was relevant "in mitigation of the offense and in consideration of the penalty to be imposed." The Liquor Authority has appealed to this court by permission of the Appellate Division, without filing a stipulation for order absolute.
The appeal must be dismissed. Though the new hearing ordered by the Appellate Division was limited to the issue of the penalty to be imposed, its order was nonetheless an order granting a new hearing from which an appeal lies only upon the filing of a stipulation for order absolute, as provided in the Constitution (N.Y. Const., art. VI, § 7) and in the Civil Practice Act (§ 588, subd. 3). (Cf. Mundt v. Glokner, 160 N.Y. 571; Flagg v. Moses, 248 N.Y. 509; Morris v. Gardner, 282 N.Y. 712; Matter of Schoenewerg, 277 N.Y. 424, 427; Elder v. New York Pennsylvania Motor Express, Inc., 284 N.Y. 350; Matter of Epstein v. Board of Regents, 295 N.Y. 154.)
Motion to dismiss appeal granted and appeal dismissed, with costs and $10 costs of motion.