(dissenting). Subdivision 1 of section 65 of the Alcoholic Beverage Control Law places upon the seller of alcoholic beverages the mandatory duty of not selling to any minor actually under the age of eighteen years. The proper interpretation and application of the law was well stated by the Appellate Division of the third department in Matter of Barnett v. O’Connell (279 App. Div. 449, 450) as follows: “Every licensee has the statutory responsibility of seeing to it that sales of alcoholic beverages are not made to persons less than eighteen years of age and assumes the risk of such sales.”
In my opinion there was substantial evidence supporting the Authority’s finding of a sale to a minor. The salesman admitted he didn’t know who paid for the liquor, the minor or the adult, or to whom it was handed at the counter. His statutory duty is to ascertain the facts; and, if he does not do so, he assumes the risk and must take the consequences of a sale to a minor. The policeman testified that Stinner, the minor, first collected the money from his associates outside the door of the package store, and that he picked up and carried off the premises the package containing the whiskey and the gin when the money was paid. The clerk did not deny the sale to Stinner, but maintained he was not a minor though concededly the only proof he had as to age was the draft card produced by Stinner’s companion. The trial commissioner accepted the testimony of the police officer and it is entirely believable.
The evil consequences of selling liquor to minors need not be emphasized. In this case these adolescents, celebrating their graduation from a high school outside the city, came to New York as a group and the night before the incident herein they, including Stinner, the minor, had also come to the same package store and purchased another bottle of rye and another bottle of gin. The circumstances in this case are not such as to admit of only one inference and the court should not substitute its judgment for that of the Liquor Authority on controverted issues of fact (Matter of Stork Restaurant v, Boland, 282 N. Y. *449256; Matter of Rumsey Mfg. Co. [Corsi], 296 N. Y. 113; Matter of Bolani v. O’Connell, 296 N. Y. 871).
Accordingly I dissent and vote to confirm the determination of the State Liquor Authority and to dismiss the petition.
Peck, P. J., Bastow and Bergan, JJ., concur with Breitel, J.; Dore, J., dissents and votes to confirm in opinion.
Determination annulled, with $50 costs and disbursements to the petitioner, the suspension rescinded and the petition granted.