
    In the Matter of Canisius College of Buffalo, Respondent, v. Ewald B. Nyquist, as Commissioner of Education of the State of New York, Appellant.
    • Argued November 15,1071;
    decided January 13, 1972.
    
      
      John P. Jehu and Robert D. Stone for appellant.
    
      Charles S: Desmond and Charles J. McDonough for respondent.
   Order reversed, without costs, and the petition dismissed in the following memorandum: The Commissioner of Education, assuming that section 6401 of the Education Law does not offend against constitutional limitations — a question on which we do not pass — denied petitioner’s application. In our view, the Commissioner had reasonable basis for his determination. (See Matter of Older v. Board of Educ., 27 N Y 2d 333, 337; Matter of County of Cayuga v. McHugh, 4 N Y 2d 609, 613.) The Commissioner has, however, invited the submission of a “ new ’ ’ application if the petitioner believes that, “as a result of any further development ’ ’, it has become an eligible institution.

Concur: Chief Judge Fuld and Judges Bergan, Breitel, Jasen and Gibson. Judges Burke and Soileppi dissent and vote to affirm on the opinion at the Appellate Division.  