
    In the Matter of Sylvan J. Lehman, Respondent. Lewis J. Valentine, as Commissioner of the Police Department of the City of New York, Appellant.
    First Department,
    March 12, 1943.
    
      Irving Galt of counsel (Paxton Blair and Sidney M. Freeman with him on the brief; Thomas D. Thacher, Corporation Counsel), for appellant.
    
      Charles A. Schneider for respondent.
   Per Curiam.

The issuance of a license to conduct a public dance hall is within the discretion of the Police Commissioner, defendant herein. (New York City Charter [1938], § 436; Administrative Code of the City of New York, § 436-1.0; L. 1937, ch. 929.) Defendant’s refusal to grant petitioner’s application was based upon his opinion that the petitioner had failed to show (1) personal fitness; (2) that the premises were safe and proper for the nse intended and (3) that he was not a men dummy ” acting for the former licensee. Facts alleged in the petition do not establish a clear legal right to the relief prayed for or that the decision rendered by defendant was either arbitrary or capricious. The Special Term, therefore, erred in annulling defendant’s determination which denied petitioner’s application for the license. (Matter of Stracquadanio v. Dept. of Health, 285 N. Y. 93, 95; Matter of Pruzan v. Valentine, 282 N. Y. 498, 501.)

The order should be reversed, with twenty dollars costs and disbursements and the proceeding dismissed.

Martin, P. J., Townlby, Glennon, Cohn and Callahan,- JJ., concur.

Order unanimously reversed, with twenty dollars costs and disbursements and the proceeding dismissed.  