Carpenter v. Grab

257 A.D. 860, 12 N.Y.S.2d 906, 1939 N.Y. App. Div. LEXIS 8190

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 29, 1939
• Status: Published

Opinion

Order directing chief of the fire department of the city of New Rochelle to renew a permit for the maintenance of a public garage and gasoline tanks on certain premises in the city of New Rochelle unanimously affirmed, with twenty dollars costs and disbursements. The fire chief may only deny a permit or a renewal thereof on grounds which relate to fire hazard or the like. Here it appears that every requirement affecting fire hazard has been met by the petitioner. A refusal to issue a permit upon a ground other than one which comes within the scope of the fire chief’s powers constitutes an arbitrary act and upon such a refusal the petitioner is entitled to the relief accorded. (Matter of Small v. Moss, 279 N. Y. 288; Matter of Larkin Co. v. Schwab, 242 id. 330, 335.) If it be the fact that the establishment exists and operates in violation of the zoning regulations, that violation may be terminated by appropriate action taken by the official directed to enforce the zoning regulations. (City of New Rochelle v. Beckwith, 268 N. Y. 315; Zoning Ordinance of the City of New Rochelle, art. XII, § 7; Matter of Kalen v. Amato, 248 App. Div. 777; Matter of Collins v. Moore, 125 Mise. 777.) On such an occasion the present petitioner will be afforded an opportunity to meet such an issue directly. Present — Lazansky, P. J., Hagarty, Carswell, Adel and Close, JJ.