
    The People ex rel. The Park Circle Amusement Co., Relator, v. The Board of Police of the City of New York, Respondent.
    (Supreme Court, New York Special Term,
    October, 1901.)
    New York, city — Discretion of police board as to granting a theatrical license not reviewable by mandamus—D. 1897, ch. 378, §§ 1472, 1473, 1474.
    It is discretionary with the police board of the city of New York whether it will grant or deny a theatrical license and its discretion, when exercised is not reviewable by mandamus.
    Application for a peremptory writ of mandamus.
    Howe & Hummel, for relator.
    Chase Mellen, for respondent.
   Fitzgerald, J.

Relator, a domestic corporation, asks that the-peremptory writ of mandamus issue out of the court directing the respondent to grant it a theatrical license for the premises situated at the southwest corner of Sixtieth street and Broadway. Sections 1472, 1473 and 1474 of the Greater New York Charter substantially re-enact the provisions of sections 1998, 1999 and 2000 of chapter 410, Laws of 1882, with the exception that the-.powers conferred upon the mayor by the earlier act are now vested in the police department. Section 1999 of the Consolidation Act was construed in People ex rel. Worth v. Grant, 58 Hun, 455, holding that the mayor might, in his discretion, refuse a license to an applicant who tendered payment of the license fee. The respondent herein was acting within its authority in denying relator’s application, notwithstanding the fact that it deposited the -amount of the fee with the respondent’s auditor, as required by law, at the time of malting the application. By the terms of the receipt given for the deposit it was expressly stated that “ money deposited will be returned upon application to the Chief Cleric if license is not granted.” In People ex rel. Schwab v. Grant, 126 N. Y. 473, the discretion of the mayor was held not reviewable upon mandamus. The affidavits submitted by the respondent, even if the court had the power, refute the contention that its decision was arbitrary or ill-considered, but, on the contrary, tend to establish the fact that it was founded upon proper investigation and consideration.

Motion denied, with costs.  