
    In the Matter of the Application of Richard R. Rollins, Appellant, for an Order Pursuant to Article 78 of the Civil Practice Act, against Frank P. Graves, as Commissioner of Education of the State of New York, Respondent.
   Appeal from an order of the Special Term of the Supreme Court entered in the Albany counly clerk’s office on August 14, 1941, dismissing the petition of the appeEant. The petitioner instituted this proceeding under article 78 of the CivU Practice Act to obtain an order directing the Commissioner of Education to restrain the further exhibition of the film “ Victory in the West ” or “ Sieg im Weston ” and discipline the distributor and exhibitor thereof. The Commissioner of Education, through the motion picture division of the Department of Education, has examined the film and concluded that it falls within the statutory definition of a newsreel under section 1083 of the Education Law and that no license is required for its exhibition. The answer admits that the early portion of the film contains prefatory matter of an alleged historical nature after which follows actual newsreel shots assembled and compiled for the purpose of showing a pictorial account of the conquest of France and the Low Countries and the use of the German Army and Divisions of the Stuka bombers, large and small tanks, infantry and parachutes, the use of Panzer divisions, field artillery and squadrons of planes. The scenes are obviously an assemblage of newsreel shots forming a connected sequence of events leading up to and including the fall of France. Whether or not we agree with the finding of the Commissioner of Education that this picture is a current event film as defined in section 1083 of the Education Law (as to which our opinions differ) we are agreed that the petitioner is not entitled to the relief which he here seeks. Order unanimously affirmed, with fifty dollars costs and disbursements. Present — -Hill, P. J., Crapser, Bliss, Heffeman and Foster, JJ. [177 Mise. 39.]  