In the Matter of the Application of Joscelyn Stable Company, Appellant, for a Writ of Mandamus against Joseph Johnson, Fire Commissioner, etc., and Others, Respondents

In the Matter of the Application of Joscelyn Stable Company, Appellant, for a Writ of Mandamus against Joseph Johnson, Fire Commissioner, etc., and Others, Respondents. First Department, July 10, 1913. Municipal corporations—Regulations of Municipal Explosives Commission of City of New York, section 376, requiring apparatus to prevent oils from flowing from garage into sewer — mandamus to compel approval of garage denied. Where, on an application for a writ of mandamus to compel the fire commissioner of the city of New York to approve a garage, the applicant asserts that its premises are fairly safe and lawful in every respect, except that it has not complied with section 376 of the Regulations of the Municipal Explosives Commission of the City of New York, which provides that “No garage permit authorizing the storage of volatile inflammable oil shall be issued for any premises which are not provided with an oil separator, trap or other similar apparatus attached to the house drain for the purpose of preventing volatile inflammable oils from flowing into the sewer,” that it has not complied with said ordinance because “it conducts its garage in such a manner that the amount of volatile inflammable oils flowing into the sewer - * is a negligible quantity and does not cause any dangerous fire conditions,” and also that there are no oil separators, traps or similar apparatus in existence which will prevent such oils from flowing into the sewer, but the city produces many affidavits showing that there are numerous devices which are practically efficient in reducing to a minimum the risk of oils in the sewer, the writ should not be granted. Appeal by the petitioner, Joscelyn Stable' Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 28th day of April, 1913, denying a motion for a writ of mandamus. Theodore K. McCarthy, for the appellant. Terence Farley, for the respondents. [MAJORITY — Per Curiam:] Per Curiam: By section 778c of the Greater New York charter (Laws of 1901, chap. 466, added by Laws of 1911, chap. 899) it is provided that all regulations of the municipal explosives commis sion approved by the fire commissioner, with certain immaterial exceptions, shall constitute a chapter of the Code of Ordinances. Section 376 of said regulations provides: “No garage permit authorizing the storage of volatile inflammable oil shall be issued for any premises which are not provided with an oil separator, trap or other similar apparatus attached to the house drain for the purpose of preventing volatile inflammable oils from flowing into the sewer.” (See Cosby’s Code Ord. [Anno. 1913] 396.) Appellant operates a garage, and its application for approval thereof was denied by the commission for non-compliance with regulation 376. Thereupon appellant applied for a mandamus to compel acceptance of the application, asserting that its premises were thoroughly. safe and lawful in every respect except that it had not complied with section 376, its excuse being “ that it conducts its garage in such a manner that the amount of volatile inflammable oils flowing into the sewer * * * is a negligible quantity and does not cause any dangerous fire conditions; ” also upon the ground that there were no oil separators, traps or other similar apparatus in existence which would prevent such oils from flowing into the sewer. Appellant claims that section 376 is oppressive and unreasonable and deprives it of its property without due process of law. The motion was denied on the ground that the selection of appliances necessary to render garages safe was within the discretion of the commission and that no issue was raised by the papers upon the fairness of their decision. Of course any discretion vested in the commission is not reviewable. We do not need to consider the question whether an ordinance passed in pursuance of express legislative power to adopt such an ordinance can he assailed as unreasonable because there is nothing unreasonable on the face of this ordinance. Its alleged unreasonableness rests solely upon, the allegation of the petition that there are no separators or other devices which will prevent “volatile inflammable oils from flowing into the sewer.” By numerous affidavits the city showed that this was not true. Notwithstanding this fact, appellant claims that because of the allegation of the petition an alternative writ should have issued so that proof might have been taken. This is his principal objection to the order. We think it untenable. The statement in the petition may he true in the sense that there is no device which will wholly prevent volatile oils from, flowing into the sewer, but there is nothing in the petition to contradict the city’s affidavits showing that there are numerous devices on the market which are practically efficient in reducing to a minimum the risk of oils in the sewer. The order should be affirmed, with ten dollars costs and disbursements. Present—Ingraham, P. J., Laughlin, Scott, Dowling and Hotchkiss, JJ. Order affirmed, with ten dollars costs and disbursements.