In the Matter of Nan B. Whaley et al., Respondents, v. State Liquor Authority, Appellant, 21 A.D.2d 977

Order unanimously modified to provide that the determination of the respondent Liquor Authority is annulled and otherwise the petition is denied and the matter remitted to the respondent for further proceedings in accordance with the memorandum, without costs of this appeal to either party. Memorandum: In the exercise of a proper discretion, this matter should have been remitted to the State Liquor Authority instead of directing the issuance of a license. (Matter of Rochester Colony v.

Hostetter, 19 A D 2d 250, 256.) This view is fortified by the further statements made upon oral argument by petitioners’ counsel of the present marital status of one of the parties. The determination should be based upon the facts and circumstances as they exist at the time of reconsideration. Del Vecehio, J., not participating. (Appeal from an order of Jefferson Special Term which annulled the determination of respondent denying petitioners’ application for a restaurant liquor license.) Present—- Williams, P. J., Bastow, Goldman, Henry and Del Vecehio, JJ.