We find that there was not sufficient evidence in law to sustain the charge that the petitioner suffered or permitted the licensed premises to become disorderly. The Authority's determination was based upon a single act of a bartender. There was no proof of any prior misconduct, or indication to the licensee that such an act would be committed. The suspension of the license because of the one single act is improper ( Matter of Migliaccio v. O'Connell, 307 N.Y. 566). We do not pass upon the question as to who was responsible for the occurrence which led to the suspension. Nor do we decide whether the bartender was free from fault — although the evidence strongly points that way. As we have stated, there was no evidence to indicate that the owner had any opportunity to prevent the occurrence and certainly the proof did not establish "continuity and permanence of the condition" as required in cases of this kind. The determination of the Liquor Authority therefore is annulled. The appeal from the order of the court denying the motion of the respondent to strike certain paragraphs from the petition becomes academic because their inclusion in the petition does not materially affect the decision arrived at. Under the circumstances that appeal is dismissed. The determination of the State Liquor Authority is unanimously annulled and the suspension vacated, with $50 costs and disbursements to the petitioner. The appeal from the order denying the motion to dismiss certain paragraphs is dismissed.
Concur — Peck, P.J., Cohn, Botein, Rabin and Cox, JJ.