Kelmenson v. Mann — 237 N.Y. 615

Majority

p. 615

In the Matter of the Application of Nathan Kelmenson et al., Appellants, v. Frank E. Mann, as Tenement House Commissioner, et al., Respondents.

Headnote

A ppedl — reversal by Appellate Division on law and facts of order granting peremptory mandamus and denial of motion — appeal to Court of Appeals dismissed where it does not appear in order that denial was not in exercise of discretion.

Matter of Kelmenson v. Mann, 207 App. Div. 494 , appeal dismissed.

(Submitted February 19, 1924;

decided April 1, 1924.)

Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered December 21, 1923, which reversed on the law and the facts an order of Special Term granting a motion for a peremptory order of mandamus to compel the tenement house commissioner of the city of New York to cancel and revoke a permit for the erection of a tenement house on the west side of Ocean Parkway, north of Catón avenue in the borough of Brooklyn, and denied said motion. It did not affirmatively appear in the order that the motion was not denied in the exercise of discretion.

p. 616

Nathan Kelmenson for appellánts.

George P. Nicholson, Corporation Counsel (John F. O’Brien, Joseph I. Berry and Michael J. Kelly of counsel), for Tenement House Commissioner of the city of New York, respondent.

Ilo Orleans and Victor Gray for Frances Cairone, respondent.

Appeal dismissed, with costs; no opinion.

Concur: ■ His cock, Ch.