Opinion
July, 1935.
Peremptory mandamus order requiring the commissioner of licenses of the city of New York to issue forthwith to the petitioner an amusement center license for the operation of a pin or mechanical bagatelle game, known as "The Sportsman," reversed on the law and not in the exercise of discretion, with costs, and application denied, with ten dollars costs and disbursements. We are of the opinion that the element of chance in the operation of the machine now before us far outweighs that of skill. "The test of the character of the game is not whether it contains an element of chance or an element of skill, but which is the dominating element that determines the result of the game." ( People ex rel. Ellison v. Lavin, 179 N.Y. 164, 170.) This game, which relies for its popularity upon that gambling spirit innate in so many people and which from common knowledge is only a money-making device for the owner and at the expense of the player, should not be looked upon with favor by courts or those public officials who in any way exercise control over them. In our opinion the machine was designed primarily for gambling purposes and, therefore, the commissioner of licenses exercised a proper discretion in refusing the license in question. Courts should not interfere with such discretion in the absence of a showing of a clear legal right to such license. The opinion of the commissioner of licenses in the instant case must control. ( Matter of Agoglia v. Mulrooney, 259 N.Y. 462.) Lazansky, P.J., Young, Hagarty, Carswell and Scudder, JJ., concur.