
    In the Matter of the Application of the Oystermen’s Dock Company, Limited, Respondent, for an Order of Mandamus against Benjamin W. Downing, as the Supervisor of the Town of Oyster Bay, in the County of Nassau and the State of New York, Appellant.
    
    Second Department,
    April 24, 1931.
    
      Thomas J. Cuff [Milton Pinkus with him on the brief], for the appellant.
    
      William T. McCoun, for the respondent.
    
      
       Revg. 137 Misc. 376.
    
   Scudder, J.

The lands under the waters of Oyster bay are town lands, held by the representatives of the town of Oyster Bay for the public good. (Tiffany v. Town of Oyster Bay, 209 N. Y. 1; Town of Brookhaven v. Smith, 188 id. 74.) The proposed lease for fifty years at the nominal yearly rental of $100 with a renewal option for a like period, under all the circumstances shown in this case, is not for the public good and should not in equity be sanctioned. Practically, it constitutes a conveyance of the fee under the guise of a lease. It is contrary to the will of the voters of the town as expressed by their vote. Such a grant of land under navigable tide waters must be in the public interest. (Coxe v. State of New York, 144 N. Y. 396; Illinois Central Railroad v. Illinois, 146 U. S. 387.) The court’s discretion in matters of mandamus must be governed by consideration of public policy. (People ex rel. Breckenridge v. Village of Ocean Beach, 207 App. Div. 821.)

The peremptory mandamus order directing appellant, as supervisor of the town of Oyster Bay, to execute and deliver a certain lease of lands under the waters of Oyster bay, should be reversed upon the law and the facts, with costs, and motion denied, with fifty dollars costs and disbursements, in the exercise of discretion.

Lazansky, P. J., Kapper, Carswell and Davis, JJ., concur.

Peremptory mandamus order directing appellant, as supervisor of the town of Oyster Bay, to execute and deliver a certain lease of lands under the waters of Oyster bay, reversed upon the law and the facts, with costs, and motion denied, with fifty dollars costs and disbursements, in the exercise of discretion.  