(dissenting). The exhibition staged at petitioner’s licensed premises on the night in question was concededly indecent, and the sole issue is whether there is any substantial evidence of notice or information on the part of petitioner, a corporation licensee of the cabarets in question, of the matter that was the basis of the complaint herein.
The testimony of petitioner’s president'was that he did not know anything about the performance; that he seldom visited the premises; that he goes there sometimes once a week or twice a week or £1 sometimes once or twice a month and that he is not active in the business. If such practice were controlling, it would only be necessary for the owner of a cabaret to absent himself from his place of business and thus avoid any responsibility for the type of entertainment conducted there, or any penalty following violations however serious. Of course that cannot be the rule applicable.
Petitioner’s manager was present and in the hall in question on March 19, 1951. One of the police officers who was present testified that the manager was in the hall within the period of time £ £ in which the Chancellor and the Chairman of the entertainment committee were giving their talks ’ ’ and that he started to leave by the door at the main entrance after the chairman of the entertainment committee made the following announcement : ££ You know what you are all here for and I must caution you that there will be no applause or no loud talking * * * if you like what you see snap your fingers.” Police officers also testified that they obtained admission by paying admission *381fees at the main entrance though they were not members of the lodge in question, Century Lodge, #641 Knights of Pythias, and accordingly the occasion was not an ordinary meeting of the members of the lodge. It was also shown that the public could gain entrance to the meeting by entering from the rear of the premises through the kitchen on payment of a fee of $1 to an employee of petitioner. A police officer, a witness at the hearing, stated that one of the officers of the meeting-spoke about a membership drive they were having and told about future meetings and then introduced “ the Chairman of the Entertainment Committee ”. On the record there is ground for a fair inference that this happened before the manager left. There is, therefore, substantial evidence to show that the manager sought to avoid responsibility for the type of ‘ ‘ entertainment ” that was afforded by leaving the hall immediately before the objectionable acts occurred.
The manager was also present at the hearing before the deputy commissioner. His testimony would obviously have shed light on whether he, as manager, had any information or notice of what the lodge had arranged for this occasion. The prosecutor directly asked petitioner’s attorney if he intended to call the manager and the attorney stated he did not. Such deliberate refusal to call a witness present and within petitioner ’s control was a fact that respondent could properly consider. Petitioner cannot avoid the consequences of its failure to call the manager to testify (Perlman v. Shanck, 192 App. Div. 179, 183; Milio v. Railway Motor Trucking Co., 257 App. Div. 640, 642; Group v. Szenher, 260 App. Div. 308, 310, affd. 284 N. Y. 741).
Personal knowledge of the petitioner or its officers is not essential. It is sufficient if the circumstances are such that the licensee is reasonably chargeable with failure properly to supervise the cabaret and prevent an occurrence such as the one herein which was almost unbelievably indecent, degraded and degrading.
This was not the first breach of moral decency by this licensee. The licensee under its present management was found guilty of a similar violation in 1944 at which time the license was suspended for obscene language during the conduct of a performance.
The record indicates the licensee’s unwillingness to face the serious duty and responsibility with reference to proper supervision of the operation and conduct of the premises. There was substantial evidence warranting revocation of the licenses.
*382Accordingly, I dissent and vote to confirm determination of respondent and to dismiss the petition, with costs.
Peck, P. J., Van Voorhis and Shientag, JJ., concur in Per Curiam opinion; Dore, J., dissents and votes to confirm determination in opinion in which Heffernan, J., concurs.
Determination annulled, with $50 costs and disbursements to the petitioner, and the police ‘commissioner is directed to reinstate petitioner’s licenses. Settle order on notice.