
    In the Matter of the Application of Henry C. Peck and Another, Petitioners, for an Order of Mandamus.
    
    Supreme Court, Monroe County,
    June 30, 1930.
    
      
      Edward M. Ogden and Frank H. Parker, for the motion.
    
      Lynn Brothers, opposed.
    
      
       See, also, 136 Misc. 294.
    
   Rodenbeck, J.

The petitioners’ contention is that the ordinances that stand in the way of obtaining a permit for the erection of their proposed gas station are unreasonable, that they were conceived in and are based on fraud, and are, therefore, void, and that action should be taken accordingly by the court.

The issue of fraud is a very broad one and allows the petitioners to allege and prove any facts that show an intent to defraud on the part of the officials charged with enacting ordinances, rules or regulations relating to the subject of erecting gas stations. No obstacles should be placed in the way of such an inquiry by the court and all allegations should be allowed to stand, the proof of which may permit legitimate inferences bearing upon the issue of corruption or fraud, if the allegations have any bearing upon that subject, although they do not bear directly upon the final action of the town officials in refusing a permit.

The courts should not be overzealous to find ways of sustaining arbitrary and unreasonable acts of public officers, and, where a charge of favoritism, amounting to fraud, is made, as in this case, the courts should open, rather than close, the door to all pertinent facts that throw light upon the issue.

The petitioners may not be able, ultimately, to succeed, but they should be given every opportunity to establish their contention, if they can do so.

Motion denied, with ten dollars costs.  