In the Matter of the Application of Michael Montario, Respondent, for a Writ of Mandamus against New York Telephone Company, Appellant

In the Matter of the Application of Michael Montario, Respondent, for a Writ of Mandamus against New York Telephone Company, Appellant. [MAJORITY] Order reversed, with ten dollars costs and disbursements, and motion for peremptory writ of mandamus denied, with fifty dollars costs, upon the ground that we think that the opposing affidavits of the police officers showed that the betting over the telephone in the petitioner’s premises was carried on by his employee in his very presence, and with his tacit permission, and, further, that he practically admitted as much in his statement to the police officer that, if the police did not take any action against him, he “ would not permit his telephone to be used again for gambling purposes.” Jenks, P. J., Thomas, Stapleton, Mills and Putnam, JJ., concurred.