MATTER OF A & R PAPER & METALS CO. v. Boyle

• Decision Date: 21 January 1952
• Citation: 202 Misc. 163
• Parties: In the Matter of A & R Paper & Metals Co., Inc., Petitioner,<BR>v.<BR>Edward T. Boyle, as Mayor of The City of Auburn, Respondent.
• Court: New York Supreme Court

202 Misc. 163

In the Matter of A & R Paper & Metals Co., Inc., Petitioner,

v.Edward T. Boyle, as Mayor of The City of Auburn, Respondent.

January 21, 1952.

George M. Michaels for petitioner.

Herbert T. Anderson, Corporation Counsel, for respondent.

GILBERT, J.

Petitioner is a junk dealer, more particularly engaged in the business of buying and selling scrap metal in the city of Auburn, New York, and, for the past fourteen years, has been engaged in said business in the said city of Auburn, operating under licenses issued annually by the Mayor of said city. The licenses have been so issued pursuant to the provisions of section 60 of the General Business Law of the State of New York, and there is no local licensing ordinance involved.

Until recently petitioner's sole place of business was at 79 Wall Street in the said city of Auburn. However, in the summer of 1951, petitioner purchased a parcel of property situate at No. 12-14-16 Arlington Avenue in the said city of Auburn, said property being an abandoned coal yard. On or about September 1, 1951, the petitioner notified the Mayor and corporation counsel of the said city that it intended to use the Arlington Avenue premises for the storage of scrap metal and that it intended to erect a fence around said premises, demolish the old buildings on said premises and take all proper and necessary precautions to assure adjoining land owners that no private or public nuisance would be maintained on said premises.

Within a few days thereafter petitioner started to erect a six-foot fence around said premises. Immediately thereafter, the Columbian Rope Co., which then owned and now owns nearby premises, complained to the Auburn city manager, and petitioner was requested to stop the erection of the fence pending further investigation by the city manager and corporation counsel. Petitioner complied with said request and did nothing further until November 8, 1951, at which time, having received no further word from the aforesaid officers of the city, petitioner completed the construction of the fence and stored scrap metal on said premises.

After certain negotiations the respondent revoked a junk license previously issued to petitioner (on July 1, 1951), which said license granted petitioner the right "to carry on and conduct a Junk Business within the City of Auburn, N. Y.", and issued a new license (on November 23, 1951) which provided that it should "be effective only so long as your place of business is limited to 79 Wall St. only." A letter was sent by respondent to petitioner which set forth the grounds on which respondent revoked the unrestricted license of July 1, 1951, to wit: That in issuing said license respondent had specifically reserved therein the right to revoke the same "for any reason which to him may seem good and sufficient", and that said revocation was also a proper exercise of the general police power reposed in respondent; further, that the operation of such premises as a junk yard would constitute a nuisance and damage the neighborhood in various ways.

It is conceded that the premises are located in an unrestricted zone and that there is no zoning ordinance which prohibits the use to which petitioner has put the premises.

Petitioner here seeks an order declaring null and void and setting aside the determination by respondent which resulted in the revocation of the July 1, 1951, license and the issuing of the new license restricted to 79 Wall Street, and prohibiting the respondent from taking any further proceedings in the matter of petitioner's operations at the Arlington Avenue address in storing and shipping scrap metal.

Petitioner contends that the business of dealing in large pieces of scrap metal is not the "junk" business and is not subject to the licensing requirements, and that, even if the statute does apply, the license is State-wide in effect and respondent could not revoke it on any of the grounds set forth or limit it in any way; that the storage of scrap metal is not a nuisance per se, and that, even if a nuisance were involved, respondent has mistaken his remedy.

The State law applies in the absence of a local ordinance requiring a license to carry on the junk business. (See 1939 Atty. Gen. 138.) As noted above, there is no local ordinance involved in this case, so that petitioner's rights and liabilities are determined by the State law. Under the wording used in section 60 of the General Business Law, it seems clear that petitioner is engaged in the "junk business" so far as the law of the State of New York is concerned.

A junk dealer need procure but one license for the transaction of his business, to be taken out...