The City, however, through its Commissioner of Parks is permitted to grant franchises, permits and licenses with respect to park property but may not grant leases or dispose of any property interest in such inalienable property. See Williams v. Gallatin, 229 N.Y. 248, 128 N.E. 121, 18 A.L.R. 1238; Williams v. Hylan, 1st Dept., 223 App. Div. 48, 227 N.Y.S. 392; Dieppe Corp. v. City of New York, 1st Dept., 246 App. Div. 279, 285 N.Y.S. 468. See, also, Aldrich v. City of New York, 208 Misc. 930, 145 N.Y.S.2d 732. Under Section 532 of the Charter the Commissioner of Parks is in charge of and responsible for the care and management of the parks and their maintenance, development and improvement in the interests of the public using them.
By chapter 2 of the Laws of 1934 the Legislature authorized the appointment of an unsalaried State Park Commissioner to the office of Commissioner of Parks of the City of New York and expressly provided that such commissioner should be eligible to hold any other unsalaried office filled by the appointment of the mayor. The right of Commissioner Moses to hold other positions in addition to that of City Park Commissioner was challenged and received judicial approval in Dieppe Corporation v. City of New York ( 246 App. Div. 279). Section 895 of the New York City Charter is a general provision prohibiting, with certain exceptions, city officers from holding two offices.
It is well settled that in the absence of clear and convincing proof that a public official has acted arbitrarily, unreasonably or capriciously, his action will be sustained. ( Dieppe Corp. v. City of New York, 246 App. Div. 279; Matter of Haim v. O'Connell, 195 Misc. 612; McEwan v. Brod, 91 N.Y.S.2d 565. ) In Matter of Haim v. O'Connell ( supra, p. 615) the court said: "Arbitrary, unreasonable and capricious, are terms which hold a close kinship and have been used in the same sense.
( Cushee v. City of New York, 42 A.D. 37; Blank v. Brown, 217 id. 624.) While the operation of these businesses is subject to rules and regulations of the park commissioner ( Dieppe Corp. v. City of New York, 246 A.D. 279), they are concededly operated for private gain and profit by private individuals. With such a situation existing, I do not believe that it was intended by the regulation in question to grant to private businesses operating on city property an immunity from the consequences of labor disputes which other private businesses do not possess.