People ex rel. Redfield v. Murray — 68 N.Y. St. Rep. 383

Majority

p. 383

The People ex rel. Louise C. Redfield, App’lt, v. Joseph Murray et al., as Commissioners, etc., Resp’ts.

(Supreme Court, General Term, First Department,

Filed June 14, 1895.)

Headnote

Excise — License—Power of commissioners.

The hoard of excise commissioners has power to reconsider their decision and grant a license, and a notice to the persons who had previously protested is not required by law or essential to the validity of the license.

Certiorari to review a decision of excise commissioners,, granting a license.

Robert L. Redfield, for relator; Alfred R. Page, for resp’ts.

— In August, 1894, one Patrick Duffy made an application for an excise license for the building No. 850 Sixth avenue, in the city of New York, and complied with the requirements of the law in making such application. Protests were filed with the board of excise against the granting of the license, by the relator and others, and on the 27th of September, 1894, the board of excise rejected the application and refused the license; but on the 23d of February, 1895, without any notice to the relator, the board reconsidered their action and granted the-license. This writ of certiorari was thereupon sued out by the relator, a property holder in the vicinity, for the purpose of reviewing the action of the board of excise. The board of excise being a continuing tribunal, and having jurisdiction of the subject of granting excise licenses, and having certainly the power to have entertained a new application and granted

p. 384

the license, we see no reason why it could not reconsider its decision and grant the license, although it had previously refused so to do. Its powers are entirely different from those of a tribunal whose functions are exhausted by exercise. As has already been stated, it is a continuing board, having a continuous power to act upon the subject of licenses. With the propriety of the granting of the license in controversy this court has nothing to do. It can only consider the question as to whether the board was without jurisdiction in the action which it took. The only right of review given by the statute is in the case of the refusal of a license. It is claimed, however, that the reconsideration by the board of its previous action, and the granting of the license thereupon, was without authority, because it was done without notice to the relator, who, it is claimed, by the filing of a protest with the board of excise had become a party to this proceeding. But we find nothing in the statute which justifies any such claim. The law does not require the board to give notice to persons who may file objections to the granting of a license, and therefore the failure to' give such notice in respect to its action could not in any manner affect its validity.

The writ should be dismissed, with costs.

All concur.