
    In the Matter of the Application of Mildred Radisch, Doing Business under the Name of Superior Coal and Oil Company, Petitioner, for an Order against William Fellowes Morgan, Jr., Commissioner of Public Markets, Weights and Measures of the City of New York, and Others, Defendants.
    Supreme Court, Special Term, New York County,
    May 17, 1938.
    
      Wachtel & Gerberg [Isidore H. Wachtel and Ezra Gerberg of counsel], for the petitioner.
    
      William C. Chanler, Corporation Counsel [Charles C. Weinstein and Bernard Newman of counsel], for the defendants.
   Frankenthaler, J.

In Matter of Picone v. Commissioner of Licenses (241 N. Y. 157) the Court of Appeals declared (p. 161) that “ if an applicant for a license can show that he is a fit and proper person to engage in a licensed business under the provisions of the licensing statute, the licensing officer may not arbitrarily impose limitations not contained in the statute upon his right to do business.” The court pointed out that if the restriction sought to be imposed by the licensing officer was reasonable (p. 161): “ It is for the Board of Aldermen and not for the Commissioner of Licenses to impose it.” The court said (p. 162): “ Laws are made by the lawmaking power and not by administrative officers acting solely on their own ideas of sound public policy, however excellent such ideas may be.”

Examination of section 833 of the present charter, of chapter 36 of the new Administrative Code for the City of New York and of the Agriculture and Markets Law fails to reveal the existence of any provision which even tends to indicate that it was intended that the commissioner of markets have the power to refuse a license under a name similar to that of another licensee. In the absence of a statute conferring such a power, it would seem that any wrong or damage resulting to the prior licensee is a matter to be dealt with by courts of equity and not by the commissioner of markets.

The motion to compel the issuance of a license to the petitioner, doing business as Superior Coal and Oil Company, is granted. Settle order.  