#### The People of the State of New York ex rel. Adolph Danziger and Others, Appellants, *v.*Herman A. Metz, as Comptroller of the City of New York, Respondent.

First Department,

January 10, 1908.

Municipal corporation — permit to maintain stall in New York city — consent to assignment — attempt to restrict rights of assignee — mandamus — allegations not traversed.

After the comptroller and the commissioners of the sinking fund of the city of New York, as authorized by the charter, have consented, without reservation, to the assignment of a certain stall privilege allowing the sale of “country produce” in West Washington market, they cannot in the permit issued to the assignee limit his rights by prohibiting the sale of live poultry. The assignee by virtue of the consent becomes absolutely entitled to a permit conferring the same rights as the permit of his assignor.

Having passed upon and consented to the assignment, the issue of a permit to the assignee is purely a ministerial act, the performance of which can be compelled by mandamus.

When the respondent presents no answering affidavits to a petition for mandamus, it is assumed that the material allegations of the petition are true.

Appeal by the relators, Adolph Danziger and others, from an order of the Supreme Court, made at- the New York Special Term and entered in the office of the clerk of the county of New York on the 13th day of August, 1907, denying the relators’ motion for a peremptory writ of mandamus.

*270*Edward W. S.*Johnston, for the appellants.

*Theodore*Connoly, for the respondent.

McLaughlin, J.:

The relators are the assignees of certain stalls or stands in West Washington Market in the city of New Yoi-Ir. These stalls are rented on permits issued by the comptroller of the city which are revocable . for good cause and not assignable without the written consent of the comptroller. The rentals are fixed by the commissioners of the sinking' fund, who, together with the bureau for the collection of city revenue and markets, have the general management and control of the. market. (Greater N. Y. Charter, § 163.*) The assignment to the relators was duly approved by the comptroller and the commissioners of the sinking fund. .. The permit under which the assignor-of the relators occupied the stand allowed them to sell *“*country produce,” but the permit, issued to the relators contained the provision, *“*the aboye stand to be occupied only as a stand for the sale of country produce. Selling live poultry strictly prohibited.” They objected to the insertion in the permit of the words “ selling live poultry strictly prohibited,” and requested that the same be taken out. This was refused and thereupon they moved for a peremptory writ of mandamus directing the respondent to issue to them a permit to use the stalls for the sale of country produce without the restriction, or to amend the permit which they had by striking the same therefrom. Their motion was denied and they have appealed. ' • '

I am of the opinion that when the assignment to the relators was approved by the comptroller and' the' commissioners of the sinking fund, and the sum to be paid therefor .fixed, the relators thereupon became entitled to exactly the same rights which their assignor had previously had under its permit. The assignment, with the consent of the necessary officers, might have been indorsed on the old permit. That being so, the issuance of the new permit was a purely ministerial act, and mandamus • will lie to compel its performance *(People ex rel. Harris*v. Commissioners, 149 N. Y. 26; *People ex rel. McCabe*v. *Matthies,*92 App. Div. 16; affd., 179 N. Y. 242). *271otherwise, the assignment which they obtained for a valuable consideration and for which they had obtained the requisite consent, might be partially or wholly destroyed by the arbitrary act of the respondent. No affidavits were presented in behalf of the respondent, so that we must assume the material allegations in the petition to be true, and'if this be done, then the relators were clearly entitled to a permit in the form requested.

What the respondent claims is that the issuance of permits rests entirely in his discretion, and inasmuch as it does not appear that the discretion was abused, the writ ought not to issue in the absence of some statute commanding it. This may be. true in the first instance, but inasmuch as that is not the question now before us, we do not pass upon it. The question here is whether the respondent — after having approved of the assignment—• can arbitrarily change the permit by issuing one containing greater restrictions than the one held by the assignor. After a permit has once been issued, it cannot be revoked without good and sufficient cause (Greater N. Y. Charter, § 151, subd. 1 *), and no such cause is here shown; on the contrary, the action of the comptroller would seem to be arbitrary and without justification. There are many stalls or stands immediately adjacent to those of the relators where live poultry is being sold under permits to sell country produce. The relators’ assignor sold live poultry at these stalls for a long time, and it is a little significant, in view of these facts, that the respondent should insist on’ issuing a permit restricting the relators in such sale. But whether significant or not, what we hold is that the relators, upon obtaining the consent of the comptroller and the commissioners without reservation, that the permits and stands should be transferred to them, thereupon became absolutely entitled to a permit exactly like that which their assignor held,, and its issuance, as' already said, was a ministerial act only — the performance of which may be compelled by peremptory writ of mandamus.

The order appealed from, therefore, must be reversed, with ten ■ dollars costs, and disbursements, the motion granted, and a writ issue commanding the comptroller to strike from the permit issued to the *272relators the words *“*selling live poultry strictly prohibited,” .or to issue another permit with súch words omitted, with fifty .dollars, costs., , •

Patterson, P. j., Ingraham, Clarke and Houghton, JJ.,concurred. ‘ ■ *■

Order reversed, with ten dollars costs and disbursements, atid motion granted as stated in opinion, with fifty dollars costs. Settle order on notice.

*

See Laws of 1901, chap. 466, § 163, since amd by Laws of 1907, chap. 365; Id. § 151, subd. 1, as amd. by Laws of 1906, chap. 190.— [Rep.

*

See Laws of 1901, chap. 466, § 151, subd. 1, as amd. by Laws of 1906, chap. 190.— [Rep.