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In the Matter of the Application of Warehousemen's Association of the Port of New York, Inc., Appellant, Against Michael Cosgrove, as Commissioner of Docks of the City of New York, Respondent
Per Curiam.
It is admitted that. Pan-American Wharfage Co., Inc., and Pan-American Terminal and Dock Company are maintaining warehouses on the double deck piers on Staten Island which they lease from the city. The decision below is that as matter of law they have the right to maintain such warehouses. The lessee agrees to abide by the laws of the State of New York respecting the use of the piers. The Greater New York charter, section 846, prohibits the maintenance on any pier of a storehouse. The use of the piers for warehousing is, therefore, an illegal use. It is the duty of the com *581 missioner of docks to enforce the terms of the permit. Physically, the use does not encumber the pier or interfere with its free use. The duty of the commissioner of docks is to notify the lessees to cease the illegal use. The respondent’s brief contends that it is not his clear legal duty forthwith to stop the illegal use. But the decision below is to the effect that the use is legal. Doubtless the court has some discretion in the matter. The remedy of mandamus may be withheld where the enforcement of a strict legal right would work unnecessary hardship.
Order should be reversed and the proceeding remitted for consideration on the merits, with costs to appellant.
His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ., concur.
Order reversed, etc.