December 30, 1909.
Max Winder [ Michael Ditore with him on the brief], for the appellant.
Thomas F. Noonan [ Theodore Connoly and Francis K. Pendleton with him on the brief], for the respondent.
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, or is 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, BURR, THOMAS and MILLER, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.