
    In the Matter of Carl Funaro, Respondent, v. William S. Hurts, as Commissioner of Motor Vehicles of the State of New York, Appellant.
   In a proceeding under article 78 of the Civil Practice Act, to review and annul the determination, dated June 23, 1960, of the Commissioner of Motor Vehicles of the State of New York, denying petitioner’s application for a renewal of his chauffeur’s license to operate a motor vehicle, the Commissioner appeals from an order of the Supreme Court, Suffolk County, entered November 23, 1960 upon the decision of the court, which annulled his said determination and which directed him to issue the license to petitioner. Order reversed on the law and the facts, without costs, and petitioner’s motion to annual the determination denied. Findings of fact which may be inconsistent herewith are reversed, and new findings are made as indicated herein. In our opinion, the Commissioner’s determination was within the discretionary power granted to him by statute (Vehicle and Traffic Law, § 501, subds. 1, 5), and was neither arbitrary nor capricious. Petitioner’s criminal record and his failure to give a full and true answer to question No. 17 appearing on his renewal application for a chauffeur’s license were factors which the Commissioner could properly consider in determining whether or not to issue a license to him (Matter of Bernola v. Fletcher, 280 App. Div. 870; Matter of Barton Trucking Corp. v. O’Connell, 7 N Y 2d 299; Matter of Arroyo v. Moss, 269 App. Div. 824, affd. 295 N. Y. 754; Matter of Sabel v. Hults, 9 N Y 2d 987). Ughetta, Acting P. J., Christ, Brennan, Rabin and Hopkins, JJ., concur.  