(dissenting). I dissent and would affirm. The acts allegedly committed by the licensee and which brought him into collision with the authorities, occurred in June and July of 1965. Following a long series of adjournments *89before the S.L.A., largely at the instance of the District Attorney, and with the acquiescence of the S.L.A., the licensee made his first appearance before the Authority in February of 1967. At that time, his attorney requested a further adjournment on constitutional grounds and with the suggestion that loches against the Authority had already set in; he said: “ and I submit that this hearing should be adjourned so that none of the testimony given here can be used by the District Attorney in view of the fact that the testimony in this proceeding could very well be used by the District Attorney against bim in the Criminal Court matter, and I further submit that this proceeding was commenced by a notice which you will observe is dated June 2, 1966 ”.
And the Hearing Commissioner, in granting the adjournment, said: “ In view of that we will adjourn this hearing with an open date, with the understanding that as soon as you would hear, you will advise in writing as soon as the criminal matter is heard, and disposed of ”.
Then there ensued further adjournments from April 12,1967, to May 12, 1967, to June 28, 1967, which latter hearing the licensee has sought to enjoin, thus far successfully.
In my view, the analysis of the court at Special Term was correct. If the licensee now testifies at the S. L. A. hearing, his testimony becomes available to the District Attorney and his defense in the criminal trial is shaken. If he stands mute, his license is cast to hazard. For if he remains mute at a hearing, after adverse testimony, the likelihood is that his license will be revoked or suspended, the quantum of proof being far less than that required in a criminal court. He should not be impaled on this dilemma. Furthermore, repeated adjournments were granted by the S. L. A. at the importunity of the District Attorney. It is patently inequitable to have adjourned the hearings at the request of the prosecutor, based.on expediency, and deny a similar request by the licensee based on constitutional grounds of no mean gravity. As the Court of Appeals said in People v. Donovan (13 N Y 2d 148, 151): “ It needs no extensive discussion to establish the high place which the privilege against self incrimination enjoys in our free society.”
And as was said by the Court of Appeals for the District of Columbia Circuit: 1 ‘ Due process is not observed if an accused person is subjected, without his consent to an administrative hearing on a serious criminal charge that is pending against him. His necessary defense in the administrative hearing may disclose his evidence long in advance of his criminal trial and prejudice his defense in that trial.” (Silver v. McCamey, 221 *90F. 2d 873, 874-875; cf. also, 67 Col. L. Rev. 1277 [Nov., 1967].)
That Special Term had power to act as it did is recognized by the majority herein: “ but we also recognize that in an appropriate case, to prevent injustice the court is empowered to intervene with respect to the performance of a statutory duty by a public board or authority. (People ex rel. Negus v. Dwyer, 90 N. Y. 402; Barlow v. Craig, 210 App. Div. 716; Matthes v. Collyer, 32 Misc 2d 224; Paliotto v. Town of Islip, 31 Misc 2d 447; Burack v. State Liq. Auth. of State of N. Y., 160 F. Supp. 161; and CPLR 6311.) ”
It is no answer to suggest, as does the majority, that if the plaintiff loses his license without due process having been honored, then he has his remedy in an article 78 proceeding. This places on the licensee an undue and an utterly unnecessary burden. Equity now having jurisdiction of the parties, the subject matter, and having knowledge of the facts, should give complete relief now and put an end to the litigation; it should not relegate the licensee to yet another and a separate proceeding. (Kilbourne v. Supervisors, 137 N. Y. 170,178; Turner Lbr. Co. v. Lacey, 201 App. Div. 41, 43.)
Nor can this licensee be much of an ogre. If he is, the Authority regards the continuance of his license with a wondrous equanimity. The Authority certainly did not proceed against him posthaste. The facts of his involvement first occurred in June of 1965. The S. L. A. did not insist on a hearing until June, 1967. By that time urgency had fled. And a felony indictment had long been suspended over the licensee framed on the same facts as the Authority would now make the subject of its demand for a hearing. But since the Authority has been so lethargic in seeking a hearing, equity should hear and respond to the licensee’s Macedonian cry.
Pomeroy’s Equity Jurisprudence quotes with approval the words of an English Chancellor: “ A court of equity, which is never active in relief against conscience or public convenience, has always refused its aid to stale demands, where the party has slept upon his rights, and acquiesced for a great length of time. Nothing can call forth this court into activity but conscience, good faith, and reasonable diligence.” (5th. ed., vol. 2, § 419).
The motion of the licensee should be granted and the appellant’s motion to dismiss the complaint should be denied.
Stevens and Eager, JJ., concur with Wither, J.; Botein, P. J., concurs in result in opinion; McGivern, J., dissents in opinion.
*91Order entered on September 7, 1967 reversed, upon the law and the facts, with $50 costs and disbursements to the appellant, and the motion for a preliminary injunction denied, and the cross motion to dismiss the complaint granted, on the law and the facts and as a matter of discretion, with costs.