In re Rosenthal

118 N.Y.S. 241 | N.Y. App. Div. | 1909

Laughlin, J.:

Pursuant to the provisions of section .34 of the Greater New York 'charter (Laws of 1901, chap. 466), as amended' by chapter 431 of the Laws of 1907,. which became of force on the fifteenth day of June of that year, the city clerk of Greater New York on the 15th day of June, 1908, duly granted a license to the petitioner to carry on the business and occupation of auctioneer. The petitioner complied with the conditions precedent to exercising such right by paying the fee and filing the bond required by the statute. Said section 34 makes it unlawful to carry on the business of an auctioneer without obtaining such a license, and it prohibits the issuance of a license to one whose license “ has been revoked for cause,” and further provides as follows: “ The president of'the board of aldermen on complaint of any person having been defrauded by any auctioneer, or by the clerk, agent or assignee of such auctioneer, doing business in said city, is authorized and directed to take testimony under oath relating thereto; and if the charge shall, in his opinion, be sustained, he shall revoke the license granted to such auctioneer, and direct his bonds to be forfeited.” The president of the board of aldermen, after a hearing upon charges, lias revoked the license of the petitioner and has so notified the city clerk, who has certified the decision to the petitioner. The principal contention of the petitioner is- that the. facts proved on the hearing did not warrant the revocation of the license. The application for the writ was made on notice to the respondent.

The petitioner shows that on the 26th day of March, 1909, the president of the board of aldermen gave notice to the petitioner in writing'that the hearing in the matter of the complaint of one Thomson against liim in his capacity as auctioneer which was set .for the first of April-"would be heard on the thirty-first day of .March- instead; that he appeared with- counsel, and an affidavit made by Thomson verified on the 24tli day of March, 1909, a copy of which is annexed to the petition, was read. This affidavit" charged that on the 4th day of February, 1909, the affiant sold to the firm of Fisher & Leifcner, of No. 736 Tenth avenue, borough of Manhattan, New York, a bill of goods amounting' to fifty-two - dollars and fifty cents, and on February 11, 1909, another bill of goods amounting to thirty-two dollars and twenty-four cents ; that on the sixteenth day of the same month he was informed that the store of the purchasers was closed, and he visited the premises two days later and found that the petitioner was there, and was, as auctioneer, about to sell the stock of goods at public auction; that he notified the petitioner that the firm, of Fisher & Leitner was indebted to him in the sum of eighty-four dollars and thirty-nine cents, and that, notwithstanding this, the petitioner proceeded ' to dispose of the entire stock of goods at public auction. And without stating any other fact having material bearing on the .question, the affiant drew the inference and further stated in his affidavit as follows: “I am satisfied that there was collusion upon the part of the above named auctioneer and the firm of Messrs. Fisher & Leitner to defraud me.” The petition shows that the petitioner stated on the hearing that he was employed by one Abraham Lebovsky, as an auctioneer, to sell the goods, and that he merely did as he was directed by his employer, who was in charge of the store and of the goods. He concedes — a fact not otherwise proved against him — that Thomson forbade the sale of the goods upon the ground that they did,not belong to Lebovsky. It further appeared by the testimony of Lebovsky that the latter purchased the stock of goods on the 13th of February, 1909, for the sum of $550, of the firm of Fisher & Leitner; that his attention was drawn to the stock of goods by an advertisement and by one Goldberg; that he had taken a bill of sale of the goods and a receipt from Fisher & Leitner, which he had lost, and that this was the first time that he had ever purchased or sold a grocery store. Upon these facts the respondent made a determination to the effect that the' charge of fraud was sustained, and he thereupon revoked the license and directed the city clerk to make a record of such revocation.

The evidence Avas wholly insufficient-to sustain the charge1 that the petitioner, in selling this stock of goods, intended to defraud Thomson or any other person. Thomson furnished no evidence that Lebovsky, who was in charge of the store and the goods, was not authorized to dispose of them. The petitioner would not have been justified in refraining from proceeding with the sale on Thomson’s mere assertion that the firm of Fisher & Leitner had purchased the goods from him and had not paid for them, and that the petitioner’s employer had no right to sell them. That did not constitute proof of those facts, and such proof Avas not offered.- If those facts were true, the law afforded Thomson a remedy. If any fraud was perpetrated upon him in obtaining his goods, he could have replevied them -as against every one except a bona fide purchaser, and conl-d probably have enjoined -a sale of them pending an action. He did not even offer to indemnify the petitioner .against any loss that he might sustain in acting upon the .suggestion made to stop the sale, rather than following the directions of the men who employed Mm. Informalities and irregularities of procedure with respect to a proceeding of this nature before an executive or an administrative officer may and should be -disregarded, but the Legislature clearly limited the authority of the president of the board of aldermen to revoke the license of an auctioneer to a complaint by a person who has been defrauded by the auctioneer personally or by the clerk, agent or assignee -of the auctioneer, and a .revocation of the license is only authorized where, by testimony •under oath, on a hearing duly had on notice to the licensee, the -charge is fairly -sustained. We have not overlooked the fact that the statute expressly authorizes the revocation of the license if, in 'the opvrdon of the president of the board of aldermen, the testimony sustains the -charge; but we are unable to agree with the ■claim made in behalf of the respondent that this . shows that the Legislature intended to vest a discretion in the president -of the board of aldermen which is not reviewable by the -courts, 'The argument in support of that theory is answered by the act of the Legislature, which limits the revocation of the license to a single ground relating to the conduct -of -the business by the licensee, ■and to a dishonest act on his part. It is not reasonable to infer that .after thus limiting the power of removal, the Legislature intended to foreclose a review of the -determination of the president of the board of aldermen by w.hich the licensee would be deprived for an indefinite period of -time, if not forever, of the right to follow the trade and calling for which he deemed himself specially fitted and which he had followed to some extent at least. If there were .any ■evidence tending to show that the.petitioner was guilty of fraud in conducting the business of an auctioneer, or in -acting as .an auctioneer, then significance might well be given to the phrase in the .act in question, and the court might properly refrain from reviewing the weight' of the -evidence. There must, 'however, not only be a charge of fraud, btit some competent evidence tending legitimately to sustain it in order to give the president of -the board of aldermen jurisdiction to annul the license. In the case at bar it now appears that such evidence was wanting. The learned justice who presided at Special Term expressed the view that the petitioner has not presented in full the evidence taken on the hearing or sufficiently excused his failure so to do. We are of opinion that that was unnecessary on the motion for the writ. He was only called upon to make out a prima facie case to the effect that he was removed upon an insufficient charge, or upon a proper charge, but without evidence to sustain" it, and then the court should direct that the writ issue to the end that the true record be certified and returned, upon which alone the final adjudication must be based, and in this regard we deem the moving papers sufficient, and they are not overcome by the opposing affidavit.

It follows that the order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Ingbaham, McLaughlin, Claeke and Houghton, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Order of May seventh affirmed.