In the Matter of Inwood Post No. 581, American Legion, Petitioner, v. State Bingo Control Commission, Respondent, 22 A.D.2d 884

Memorandum by the Court. Determination of respondent, State Bingo Control Commission, confirmed and petition dismissed, without costs and without disbursements. Judicial review of its determination is limited to a consideration of whether or not there was substantial evidence to support its essential findings. (See Matter of Stork Rest. v. Boland, 282 N. Y. 256, 273; Matter of Phinn v. Kross, 8 A D 2d 132, 135.) The commission was entitled to rely on circumstantial evidence as the basis for such findings.

The commission could draw reasonable inferences from any proven fact and utilize its own experiences in drawing such inferences. (See 2 Am. Jur. 2d, Administrative Law, § 394, pp. 200-201.) It was the function of the commission to weigh conflicting inferences and its findings thereon should prevail. (Matter of Gordon v. New York Life Ins. Co., 300 N. Y. 652, 654.) The finding that the petitioner falsified its reports is supported by permissible inferences arising from the evidence before the commission.

It was entitled to find that the dates selected were properly representative and fully suitable as the basis for determining the approximate attendance for each evening of bingo players, the average per player expenditure and the average nightly total receipts during the period of 15 occasions from November 8, 1963 to March 6. 1964. It does not appear that the test dates were arbitrarily or capriciously selected without regard to due consideration of proper and relevant factors in reaehnig the estimate of proper averages.

Fair sampling is a proper method, usable particularly by administrative agencies, to establish at least prima facie the existence of an average fact pattern on a number of occasions or over a period of time. There is nothing unfair or improper in the use of this method where the adverse party is given full opportunity to present evidence refuting the inferences flowing from the sampling. (See 2 Bender’s N. Y.

Evidence, § 53.02 [2].) In this ease, as demonstrated by the testimony of the commission’s expert and his graphs, it satisfactorily appears that the sampling was fair and supports the findings of the commission. The privilege of conducting bingo games given to certain organizations and the conditions thereof should be “strictly construed and rigidly enforced * * * to ensure a maximum availability of the net proceeds of bingo exclusively for application to the worthy causes and undertakings specified herein * * * the mandate of [this]

section ° * * should be carried out by rigid regulation to prevent '■ * * the diversion of funds from the purposes herein authorized.” (General Municipal Law, § 475.) The commission cannot be expected to have investigators make an on-the-spot daily check of attendance at all authorized bingo games. The method employed by it here was a feasible means for determining prima facie whether attendance and receipts are under-reported. It was fully within the power of the petitioner to present evidence refuting the inferences arising from the commission’s sampling. Since, however, it offered no satisfactory explanation, the commission’s determination rests on substantial evidence.