
    In the Matter of the Application of James McIntosh, Appellant, for a Writ of Mandamus, v. Joseph Johnson, Fire Commissioner of the City of New York, and Others, Constituting the Municipal Explosives Commission of the City of New York, Respondents.
    First Department,
    February 6, 1914.
    Municipal corporation — validity of ordinance of city of New York forbidding use of building adjacent to public school as a garage—permit denied.
    An ordinance of the city of New York which forbids the issuance of a permit for a public garage, ‘ ‘ which is situated within fifty feet of a building occupied as a school, theatre or other place of public amusement or assembly,” is reasonable and valid.
    Hence, an application for a permit to use a building as a garage which is located adjacent to a public school where many young children attend, should be denied.
    Appeal by the petitioner, James McIntosh, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of July, 1913, denying a motion for a peremptory writ of mandamus.
    
      Theodore K. McCarthy, for the appellant.
    
      Terence Farley, for the respondent.
   Scott, J.:

Relator is the lessee of a building in the borough of Manhattan, city of New York, which has been used by him and others as an automobile garage since 1903. Permits for its use were issued yearly until 1910, but since then no permit have been issued. The building is of brick, containing two stories and a basement and has fireproof floors. The relator has applied for a permit which has been refused and the purpose of this proceeding is to compel its issuance. In his application for a permit relator declared it to be his purpose to store and keep upon the premises 200 gallons of gasoline, 100 gallons of oil and 20 gallons of kerosene. The defendants the municipal explosives commission and the fire commissioner base their refusal to entertain relator’s application for a permit upon the fact that the building for which a license is required is next door and adjacent to a public school attended by some 1,700 pupils, of whom about 700 are under the age of ten years. On the other side of the building is a five-story non-fireproof tenement house. The defendants justify their refusal as follows:

Ohapter-899 of the Laws of 1911 amended section 727 of the Greater New York charter (Laws of 1901, chap. 466) by creating a bureau of fire prevention, and added to the charter eleven new sections (§ 774 et seq.), one of which (§ 778c) authorized the municipal explosives commission to issue certain regulations, which, when approved by the fire commissioner, should constitute a chapter of the code of city ordinances. Such regulations were accordingly issued and approved. (See Cosby’s Code of Ordinances [Anno. 1913], 356-427; Id. 395, § 366 et seq.) One of them (§ 366) made it unlawful to use any building as a garage without a permit from the fire commissioner. Another (§ 368) provided that such a permit might be issued by the fire commissioner upon a written application, and another (§ 371) provided that it might be issued only with the approval of the municipal explosives commission.

Among the restrictive provisions contained in another regulation or ordinance (§ 370) is one which forbids the issuance of such a permit for any building, shed or inclosure which is situated within fifty (50) feet of the nearest wall of a building occupied as a school, theatre or other place of public amusement or assembly. ”

If this ordinance is valid it affords complete justification for the refusal of the defendants to issue a permit. The relator’s contention is that the ordinance or regulation, in so far as it forbids the issue of a license to a garage within fifty feet of a school, is unreasonable and, therefore, void. We do not so consider it. The affidavits read in behalf of the defendants, which for the purpose of this motion must be accepted as true, show very clearly the constant danger that there is that a fire may break forth in a garage, and that, from the nature of the materials stored therein, the results of such a fire are likely to be very disastrous if a place of assemblage be near by where many persons are congregated, and especially if the place of assemblage be a school filled with young children. The danger perhaps will result rather from panic than from the fire itself, but in either case it is a danger to be guarded against. It appears that there have already been three fires in the very ' building for which a permit is now asked, but fortunately they all occurred when the school was not in session. The regulation or ordinance is well within the power given by the Legislature and is well adapted to carry into effect the purpose of the legislation. We do not think and, therefore, cannot say that it is oppressive or unreasonable.

The order must, therefore, be affirmed, with ten dóllars costs and disbursements.

■ Ingraham, P. J., McLaughlin, Clarke and Hotchkiss, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  