Opinion
May 15, 1956
Whether or not the action of the police commissioner in refusing a license was arbitrary or capricious cannot be determined upon the present state of the record. While the commissioner may refuse to grant a license on the basis of relevant information derived from different sources ( Matter of Barresi v. Biggs, 203 App. Div. 2, 6; Matter of Agoglia v. Mulrooney, 259 N.Y. 462, 465; People ex rel. Lodes v. Department of Health, 189 N.Y. 187, 194; Matter of Fink v. Cole, 286 App. Div. 73, dissenting opn. by BOTEIN, J., p. 85, revd. 1 N.Y.2d 48), he must disclose the circumstances forming the basis for the exercise of his discretion. Where his discretion has been properly exercised, this court cannot substitute its judgment for that of the commissioner. In this case, however, the return does not include the records referred to by the hearing officer, nor was any testimony taken before the hearing officer of facts upon which the commissioner could properly exercise his discretion against the applicant for the license. While it appears that sufficient information may have been in the possession of the commissioner, such information was not adduced or put in evidence at the hearing so that the applicant could meet or refute it. Order unanimously modified and the matter remitted to the police commissioner for further proceedings in accordance with the views herein expressed. Settle order on notice.
Concur — Peck, P.J., Breitel, Botein, Rabin and Cox, JJ.