The People of the State of New York ex rel. Alessandro Rota, Appellant, v. William Baker, as Police Commissioner of the Police Department of the City of New York, Respondent

The People of the State of New York ex rel. Alessandro Rota, Appellant, v. William Baker, as Police Commissioner of the Police Department of the City of New York, Respondent. Second Department, December 30, 1909. Municipal corporations-^theater license, city of New York — discretionary power of police commissioner — mandamus. The granting of a concert hall license by the police commissioner of the city of New York is discretionary, and mandamus does not lie to compel him to issue a certificate if his refusal to do so be not arbitrary, unreasonable or based upon false information. Appeal by' the relator, Alessandro Rota, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 17th day of November, 1909, denying the relator’s motion for a peremptory writ of mandamus. Max Winder \_Miohael Ditore with him on the brief], for the appellant. Thomas F. Noonan [Theodore Oonnoly and Franoi's K. Pendleton with him on the brief], for the respondent. [MAJORITY — Rich, J.:] Rich, J.: The relator made application to the respondent for a concert hall license, which was refused, and now he seeks to compel its issuance by this proceeding. The power to issue such licenses, now vested in the police commissioner, was formerly vested, in and exercised by the mayor. (Laws of 1901, chap. 466, “ Section Three;" Laws of 1897, chap. 378, §§ 1472-1474, as amd. by Laws of 1901, chap. 412; Laws of 1882, chap. 410, §§ 1998-2000, as amd. by Laws of 1885, chap. 249.) Such power is discretionary and not controlled by mandamus. (People ex rel. Worth v. Grant, 58 Hun, 455; Matter of Armstrong v. Murphy, No. 1, 65 App. Div. 123; People ex rel. Park Circle Amusement Co. v. Police Board, 36 Misc. Rep. 89 ; People ex rel. Mayor, etc., v. McCarthy, 102 N. Y. 643; People ex rel. Schwab v. Grant, 126 id. 473; People ex rel. Wm. Fox Amusement Co. v. McClellan, decided at Special Term by Mr. Justice Thomas, March, 1909.) This rule is varied only when the action of the board or person vested with the power of issuing a license is arbitrary, tyrannical or unreasonable, oris based upon false information. The record before us discloses a wise and commendable exercise of the discretion vested in the respondent, and the order must be affirmed, with ten dollars costs and disbursements. Jenks, Bure, Thomas and Miller, JJ.; concurred. Order affirmed, with ten dollars costs and disbursements.