126 N.Y.S. 546 | N.Y. App. Div. | 1910
This is an appeal from an order denying relator’s application for a peremptory writ of mandamus to compel the defendant, as commissioner of licenses, vto consent to a change of the location of the business of an employment agency for which the relator holds an unexpired license.. The business of employment agencies in cities is strictly regulated by law. (Laws of 1910, chap. 700, amdg. General Business Law [Consol. Laws, chap. 20; Laws of 1909, chap. 25], art. 11.) To carry on the business a person must take out an annual license and pay .a fee and the license may not be assigned or transferred or the location in which the business under it is conducted changed, without the consent of the mayor or the commis-. sioner of licenses. ' '
On May 3, 1910, the relator obtained a license authorizing him to carry on business at Mo. 689 Sixth avenue in the. city of Mew York. On September 1, 1910, he sold out the fixtures and good will of his place of business to one Kirwin Burke, but .did not assign or transfer his license which was valid until May 2, 1911, On Movember 1,1910, relator applied to respondent to consent to the change of location of the business to be transacted under said license to Mo. 628 Sixth avenue. Relator alleges that the place in which he wished to conduct business complied in all respects with the requirements of the statute and, as this is not denied, it must be accepted as true. The respondent refused to consent to the change of location, however, because he believed, from an inquiry-made by him, that relator when he sold out his business to Burke had agreed not to engage in the same business elsewhere, and - he considered that relator was not a person of good character because he was will-' ing to violate this agreement. The commissioner had no power or jurisdiction to determine any such question, or to undertake to specifically enforce any such agreement, if it was in fact made, and the learned corporation counsel very properly makes no attempt to justify the reasons given by respondent for. his refusal to act. He
Section 191 of the General Business Law (asamd. supra) provides ■ that": “ Whenever said mayor or commissioner of licenses shall refuse to issue or shall revoke the license of an employment agency, said determination may be reviewed by certiorari.” It is argued that. this provision furnishes the exclusive remedy available to a person aggrieved by the action or the refusal to.act of the respondent. It will be observed that the sentence quoted applies in terms only to .the refusal to issue a license and to the revocation of a license, and does not in terms apply to the refusal to "consent to a" change of location of a business already licensed. The reason for this ' distinction becomes obvious upon an examination of the statute. The proceedings both upon the grant of a license (§ 174) and "upon a revocation (§ 191) are judicial in their nature, and call for regular hearings and the talcing of testimony undér .'oath, the predominant. "consideration being the character and conduct of the person apply-' - ing for or holding the license. So also where, it is desired to transfer a license from one person to- another a similar procedure is prescribed, the important consideration again being the character of the proposed transferee. (§ 176.) To review such quasifjudicial pro
The order appealed from must be reversed, with ten 'dollar’s costs and disbursements, and tlie application granted.
Ingraham, P. J., Clarice, Miller and Dowling, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted.