Pruzan v. Valentine

• Decision Date: 16 April 1940
• Citation: 27 N.E.2d 25,282 N.Y. 498
• Court: New York Court of Appeals Court of Appeals
• Parties: PRUZAN v. VALENTINE, Com'r of Police, et al.

282 N.Y. 498

27 N.E.2d 25

PRUZAN

v.VALENTINE, Com'r of Police, et al.

Court of Appeals of New York.

April 16, 1940.

Appeal from Supreme Court, Appellate Division, First Department.

Proceeding in the matter of the application of Ephraim Pruzan for an order pursuant to Article 78 of the Civil Practice Act (s 1283 et seq.), directing Lewis J. Valentine, Commissioner of Police of the City of New York, and others, to approve an application for licenses to operate two taxicabs in the City of New York. From an order of the Appellate Division, 258 App.Div. 791, 15 N.Y.S.2d 819, in which appeal was denied in 258 App.Div. 866, 16 N.Y.S.2d 532, unanimously affirming, with $20 costs and disbursements, an order by the Special Term denying the application, petitioner appeals.

Affirmed. Harold Riegelman, of New York City, for appellant.

William C. Chanler, Corp. Counsel, of New York City (Francis J. Bloustein, Stanley Buchsbaum, and Paxton Blair, all of New York City, of counsel), for respondents.

LEWIS, Judge.

In this proceeding under article 78 of the Civil Practice Act we have granted leave to appeal and now review an order of the Appellate Division unanimously affirming an order of Special Term denying the appellant's application for an order directing the respondents to approve his application for licenses to operate two taxicabs in the city of New York. The appellant asserts that the respondents' action in denying his application was capricious, arbitrary and unreasonable.

Having chosen to apply at Special Term for an order to compel the performance of an alleged official duty, the appellant is required to establish a clear legal right thereto. Under such proof Special Term may determine whether in the exercise of a sound discretion it will grant or withhold the order. However, it is only where the record of proof leaves no scope for the exercise of a reasonable discretion that this court may rule, as matter of law, that there has been an abuse of that discretion. Matter of Coombs v. Edwards, 280 N.Y. 361, 363, 21 N.E.2d 353;Matter of Durr v. Paragon Trading Corporation, 270 N.Y. 464, 469, 1 N.E.2d 967. We apply that test to the record now before us.

The Administrative Code of the City of New York (Laws of 1937, Ex.Sess., ch. 929) contains a legislative finding that ‘the taxicab industry in the city of New York is vested with a public interest because it is a vital and integral part of the transportation facilities of the city of New York and that its regulation is therefore necessary.’ s 436-2.0, subd. 1. It enumerates certain evils and public hazards to be corrected by regulatory measures and to that end provides that the administrative control of the licensing and regulation of taxicabs shall be lodged with the Department of Police. Administrative Code, ss 434a-5.0; 436-2.0, subds. 2(b), 7.

Claiming to have purchased two taxicabs from Guardian Cab Company, Inc., the appellant applied to the Hack Bureau of the Police Department for a license for each cab. A hearing was promptly had before the respondent Fourth Deputy Police Commissioner, and thereafter the application was denied for reasons stated in the following letter:

‘September 22, 1939.

‘Mr. H. D. Pruzan,

‘315 West 94th Street,

‘New York, N. Y.

'Dear Sir:

‘I have carefully considered your application made pursuant to the provisions of Section 436-2.0 (c-7) of the Administrative Code of the City of New York.

‘You have made an application for licenses for two taxicabs allegedly purchased by you from the Guardian Cab Company, Inc.

‘Under the provisions of the section referred to, transfers may be made only by a person owning two or more taxicabs to a person who owns two or more taxicabs, or who will thereafter own two or more taxicabs. The section further provides that such transfers may be made only to a person who has demonstrated to the satisfaction of the Hack Bureau that he is qualified to assume the duties and obligations of a taxicab owner. The transferee must further assume the outstanding tort liabilities of the transferor in the excess of the amount covered by any bond or policy of insurance.

‘This department is of the opinion that you have not demonstrated that you are qualified to assume the duties and obligations of a taxicad owner.

‘The department is further of the opinion that the alleged transfer from your vendor to you is not a bona fide transfer, and is not such a transfer as is contemplated by Section 436-2.0 of the Administrative Code.

‘Your application is, therefore, disapproved.

‘Very truly yours,

‘(Signed) Cornelius O'Leary,

‘Fourth Deputy Police Commissioner.’

We shall consider first whether there is proof of any circumstances which may properly form a basis for the respondents' conclusion that the alleged transfer of two taxicabs from the Guardian Cab Company, inc., to the appellant was not a bona fide transaction. There can be no doubt that section 436-2.0 of the Administrative Code, which makes provision for the licensing of taxicabs, contemplates that where a license is surrendered by the vendor and the vendee applies for a new license, a bona fide transfer is contemplated. If, in fact, the application is made by the vendee, ‘A new license shall then be issued by the hack bureau in place of the license so surrendered, provided the applicant has demonstrated to the satisfaction of the hack bureau that he is qualified to assume the duties and obligations of a taxicab owner, as imposed by the provisions hereof * * *.’ Administrative Code, s 436-2.0, subd. 7.

It appears from the appellant's petition that he has been a licensed taxicab driver for eight years, during which time he has been employed by one or more taxicab companies affiliated with Terminal System, Inc., to which it will be convenient to refer as ‘Terminal.’ These companies enjoyed concessionary rights to furnish cab service at various railway terminals in connection with which the appellant had the privilege of soliciting cab fares at the Grand Central and Pennsylvania stations. While thus employed and in August, 1939, the appellant, with other employees of Guardian Cab Company, Inc., and Netherland Cab Company, Inc. two affiliates of Terminal were told by an executive officer of Terminal that it...