
    The People ex rel. James W. Ketcham, App’lt, v. The Excise Commissioners of New York, Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed April 14, 1892.)
    
    Excise—Hand ahus—Jury.
    Upon the return to an alternative mandamus to review the action of excise commissioners in refusing to grant a li.-ense, the court is to decide in a summary way whether the defendants have acted arbitrarily and abused their power; the framing of issues for trial by jury is not contemplated by the act of 1886 and cannot be permitted.
    Appeal from order denying motion to frame issues upon the return to a writ of alternative mandamus and to send issues before a jury for trial.
    
      Mandamus to require the commissioners to grant a license to relator.
    The opinion at special term was as follows:
    Barrett, J.—The 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 jury 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.
    
      Albert I. Sire, for app’lt; Edward Browne, for resp’ts.
   Per Curiam.

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

Van Brunt, P. J., O’Brien and Andrews, JJ., concur.  