
    People ex rel. Ketcham v. Excise Com’rs of New York.
    
      (Supreme Court, General Term, First Department.
    
    April 14, 1892.)
    Mandamus—Excise Commissioners—Refusal to Grant License—Jury Trial.
    In proceedings on mandamus to review the action of the excise commissioners of New York city in refusing to grant a license, it is not error for the court to refuse to frame an issue of fact to be tried by a jury, since Laws 1886, c. 496, provides that, if the court or judge shall determine on the hearing that the application for a license has been rejected without good and valid reasons, he may direct the excise commissioners to grant a license.
    Appeal from special term, New York county.
    James W. Ketcham, relator, applied to the excise commissioners of New York city for a license to sell liquors, which was denied. Relator commenced this proceeding by the issuance and service of an alternative writ of mandamus, requiring the commissioners to grant him a license or show cause. Relator appeals from an order denying his motion to frame issues of fact, and submit them to a jury.
    Affirmed.
    The opinion of Mr. Justice Barrett, at special term, is as follows: “The review of the excise board contemplated by the act of 1886 is summary, and the question whether the board acted arbitrarily has been left to the court or judge issuing the mandamus. The discretion vested in the excise commissioners will not be interfered with on such an application. It is only where there has plainly been an arbitrary abuse of that discretion that the court will interfere. But whether the court will interfere or not is plainly a matter for its judgment upon the petition, writ, return thereto, and the evidence and papers which were before the commissioners. Upon looking over the whole ground, the court will, in a summary way, decide whether the commissioners have abused their power, and arbitrarily rejected the applicant’s petition. It is the court which must decide this, not a jury. The framing of an issue was never contemplated by the act of 1886; and, if that practice were permitted, juries would soon be turned into excise commissioners. We require no opinion from a j ury as to whether the commissioners acted arbitrarily in the matter, but the court will itself decide that question. The order to frame issues should therefore be vacated. ”
    
      Argued before Van Brunt, P. J., and Ingraham and O’Brien, JJ.
    
      Albert I. Sire, for appellant. Edward Browne, for respondent.
    
      
       By chapter 496 of the Laws of 1886, it is enacted: “ Section 1. The boards of commissioners of excise in the cities of this state having a population of over one hundred and fifty thousand inhabitants shall, if all other requirements of the law have been complied with, have power to grant license to sell strong or spirituous liquors, ale, wine, or beer, to be drank on the premises, to be named in the application for such license, to any person or persons having a good moral character, whether or not they propose to keep an inn, tavern, or hotel, provided that no such license shall be granted unless the said commissioners shall be satisfied upon examination that the applicant therefor is a person of good moral character, and that a license may properly be granted for such sale in the place proposed: provided, however, that where a resident of any city affected by the provisions of this act shall apply to the board of excise of said city for a license, and such application shall be denied, and license refused, it shall and may be lawful for such person to apply to any court of record in said city, or to a judge thereof, for a writ of mandamus to review the action of such excise commissioners or board of excise, and said board, in its return to said writ, shall include all evidence and all papers on which the action was based. If the court or judge by whom a writ of mandamus shall be issued, in pursuance to the provisions of this act, shall determine upon the hearing of said mandamus that the application made the basis for said writ of review has been arbitrarily rejected, or has been rejected without good or valid reasons therefor, the said court or judge may, by an order, direct the excise commissioners oi board o£ excise to grant said license. ”
    
   Per Curiam.

We think the order appealed from should be affirmed, on the opinion of the court below, with costs.  