MATTER OF ROSS'S DAIRIES, LTD. v. ROHAN

Proceeding under article 78 of the Civil Practice Act to review a determination of the State Liquor Authority, dated December 11, 1959, suspending for 10 days petitioner's retail off-premises beer license on the ground that the petitioner had violated subdivision 1 of section 65 Alco. Bev. Cont. of the Alcoholic Beverage Control Law by selling an alcoholic beverage to a minor actually under the age of 18 years. The proceeding has been transferred to this court for disposition (Civ. Prac. Act, § 1296), by order of the Supreme Court, Kings County, dated February 5, 1960. Determination confirmed and proceeding dismissed, without costs. A sale of an alcoholic beverage to a minor who is actually under the age of 18 years constitutes a violation of the statute, regardless of the fact that the minor appeared to be over that age ( Matter of Barnett v. O'Connell, 279 App. Div. 449). Nor is it a defense that the minor represented herself to be, or presented purported proof of being, over that age ( Matter of Ward v. O'Connell, 280 App. Div. 1021). Such a sale is an act malum prohibitum and is not to be excused by ignorance, mistake of fact or honorable intention ( People v. Werner, 174 N.Y. 132; People v. Davin, 1 A.D.2d 811). Beldock, Acting P.J., Ughetta, Christ, Pette and Brennan, JJ., concur.