Stern v. McCaffrey

Per Curiam. The commissioner of licenses of the city of New York has been directed by the order appealed from to issue to petitioner a license for a newsstand on the sidewalk at 125th Street and Lenox Avenue, borough of Manhattan. The commissioner had denied the license upon the ground that petitioner was not qualified to obtain it under section B32-59.0 of the Administrative Code of the City of New York, which regulates the issuance of such licenses. The general scheme of the statute is that preference is to be granted to applicants for newsstand licenses according to the following grades: (A) needy disabled veterans; (B) needy handicapped persons; and (C) other residents of the city. It is alleged by the commissioner that there is a waiting list of persons in grades A and B. Petitioner is not a needy disabled veteran or handicapped person. He was licensed to operate the stand from 1945 to date [463] under the following circumstances: In 1926, a license was issued for the stand to petitioner’s father, who was blind. After the death of the father about 1942, the license was issued to his widow, petitioner’s mother, for several years. After the mother died in 1945, petitioner applied for and was granted a renewal of the license in 1945. He claimed to be entitled to it under subdivision f of section B32-59.0, which provides: “ f. If a licensee under section B32-58.0 of the code shall die and leave surviving him a widow or other family dependents in need, such license shall continue in full force until its expiration for the benefit of such widow or dependents who may be given preference in the reissuance of such license.” At the time of his mother’s death, petitioner was about forty years of age, apparently in good health and gainfully employed. For practically all of the period since, petitioner has been employed on a part-time basis in delivering publications by automobile which in 1951, when his last annual application for a renewal of the license was denied, paid him $67.50 a week plus $25 allowance for his automobile. The commissioner determined that under the circumstances he did not qualify for a preference in receiving a renewal of the license over those in grades A and B aforesaid. It seems to be the legislative scheme that licenses are not to pass unto the descendant of a former licensee as a matter of right, but such descendants qualify only in case of dependency. Petitioner attempts to take advantage of his being temporarily out of work when he applied in 1945 to establish dependency. He had been working steadily from 1928 and resumed the same job he had previously held shortly after his 1945 license was granted. The grant of the first application in 1945, whether the commissioner was warranted in granting it or not, did not afford petitioner any greater right to future licenses, which were required to be awarded in the order of statutory preference. The commissioner would be authorized upon the discovery of any improper granting of a license to refuse to renew it. If the final action was proper, it should not be disturbed by the court (People ex rel. Finnegan v. McBride, 226 N. Y. 252; Matter of O’Brien v. Delany, 255 App. Div. 385). The courts may not interfere with the exercise of discretion by an administrative officer, unless his action is arbitrary or capricious. Clearly, the sole basis for a decision that the present action was arbitrary or capricious would be that petitioner was entitled to the license, as a matter of law, as a needy dependent of a former licensee. We think that the commissioner [464] was entitled to decide that this applicant was not such a needy dependent or legally entitled to the license under the present circumstances. Petitioner lays great stress on the fact that the commissioner offered to issue the license to him if he would give up his other employment. We do not find that the case turns on the correctness or incorrectness of this offer. It is sufficient to hold upon all the facts that petitioner did not show a clear legal right to obtain the license. The order appealed from should be reversed, with $20 costs and disbursements, and the motion denied.