Taub v. McElligott

246 A.D. 729

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 1935
• Status: Published

Opinion

Order of mandamus requiring the defendant to issue a permit to store and use liquefied chlorine gas in fifteen one-ton cylinders for a period of one year reversed on the law and the facts, without costs, and motion denied, as a matter of law and not in the exercise of discretion. Appeal from alternative mandamus order dismissed. We are of opinion that the resolution adopted by the board of standards and appeals did not deprive the defendant of the discretion vested in him by ordinance (Code of Ordinances, chap. 10, art. 2, § 26; art. 17, § 214-a) to limit the size of containers and to revoke a permit or certificate at any time or to grant a permit without fixing a period of time. In refusing a permit it cannot be said that the action of the defendant was arbitrary or unreasonable. Nor did the respondent become vested with any rights created by reason of his previous efforts to secure a permit, as he was aware at all times that such a permit Would be “ a mere revocable license.” Under the circumstances, we do not believe that a court may substitute its judgment for that of the commissioner and grant a permit for a fixed period of time, since a permit which might be granted without fixing a period of time would be a nullity, in view of the attitude of the defendant-commissioner, a public officer who is endowed with discretion and authority to revoke it immediately. Lazansky, P. J., Young, Hagarty, Davis and Johnston,' JJ., concur.