
    In the Matter of the Application of Frank G. Ormsby, Respondent, for a Writ of Mandamus against George H. Bell, as Commissioner of Licenses of the City of New York, Appellant.
    Second Department,
    February 11, 1916.
    Municipal corporations — theatre license, city of New York — storage of inflammables in adjoining building—mandamus to compel action by commissioner of licenses.
    While the power of the commissioner of licenses of the city of Mew York is discretionary, and as a rule beyond the reach of mandamus, yet the writ may issue when the express ground avowed by the commissioner for his refusal to issue a license was unlawful.
    Thus, the lessee of premises intended to be used for a motion picture theatre should be granted a writ requiring the commissioner of licenses to pass upon his application for a license without regard to the fact that a third person whose premises are within fifty feet of the relator’s premises holds a permit authorizing him to store volatile inflammable oils, which storage will become unlawful if the relator’s theatre license should be granted.
    Rich and Mills, JJ., dissented in part. _
    Appeal by George H. Bell, as commissioner of licenses of the city of New York, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 9th day of Hovember, 1915, granting petitioner’s motion for a peremptory writ of mandamus.
    
      Frank Julian Price [Thomas F. Magner and Lamar Hardy with him on the brief], for the appellant.
    
      Arleigh Pelham [Martin W. Littleton with him on the brief], for the respondent.
   Jenks, P. J.:

I recognize the authority of People ex rel. Worth v. Grant (58 Hun, 455), of Matter of Armstrong v. Murphy, No. 1 (65 App. Div. 123) and of People ex rel. Schwab v. Grant (126 N. Y. 473), to the effect that the power of the commissioner of licenses was discretionary, and, as a rule, beyond the reach of mandamus. But I think that the limitation of that rule as stated in People ex rel. Rota v. Baker (136 App. Div. 7) and People ex rel. Lodes v. Department of Health (189 N. Y. 187, 194) applies, in that the express ground avowed by the commissioner for the refusal of the license was ‘ ‘ unreasonable. ” Although the occupation of the relator is inherently subject to the police power and license therefor is prerequisite, the ground of the refusal in no way relates to that occupation, but rests only upon the exterior circumstance that a third party has been and now is in use of the land adjacent for a business that requires a permit which cannot be issued for any building in which the compartment for volatile inflammable oil is within 50 feet of the nearest wall of any building occupied as a school, hospital, theatre or other place of public amusement or assembly. When the third person secured such permit, the land now occupied by the motion picture theatre was vacant, and he incurred the risk of a subsequent legitimate use of such vacant lands by the owner and the consequence thereof. He had no legal assurance that such use would be limited so that his own occupation would not offend the ordinance. And he cannot now invoke the permit to that end. For thereby he would deprive the owner of his full property rights. (See City of Buffalo v. Chadeayne, 27 N. Y. St. Repr. 60, 62, and cases cited; affd., 134 N. Y. 163.) The city is not seeking to exercise the police power with direct reference to the occupation of the relator, but denies a permit to him lest his neighbor’s occupation offend the law in a feature limited to that occupation. While the case is a hard one so far as the third party is concerned, this affords no reason why the relator should be deprived of a legitimate use of his own land. I deal now simply with the question of the right of the relator to mandamus.

I think, however, that the Special Term erred in granting a peremptory writ that the license should issue, and that the order should be modified so as to require the commissioner of licenses to pass upon the application for the license without regard to the circumstance that there was a dye house or dyeing establishment on the adjacent land which, as incident to the business, involved the storage of inflammables. (French v. Jones, 191 Mass. 522.)

Thomas and Oarr, JJ., concurred; Mills and Rich, JJ., voted to affirm.

Order modified, without costs, in accordance with opinion. Order to be settled before the presiding justice.  