(dissenting):
The Acense was refused solely on the ground that the apphcant was not possessed of a membership card in the Twentieth Century Taxicab Association, Inc. This association has a particular insignia for designating the taxicabs used by members thereof, and the commissioner alleges that he adopted the policy of refusing Acenses to appAcants having taxicabs bearing the insignia of such an organization unless they are able to prove membership therein. The petitioner’s cab bore upon it the insignia of the Twentieth Century Taxicab Association, Inc., but he did not have a membership card. He claims he is a member but is in arrears three months’ dues, and hence could not procure á card. There is no claim by the Twentieth Century Taxicab Association, *Inc., that the petitioner is unlawfully using the insignia in question, and if there were such a claim, it would be a matter for adjudication by the courts and not by the commissioner. The duties of the commissioner with respect to the issuance of licenses are prescribed in article 8 of chapter 14 of the Code *280of Ordinances of the City of New York. Section 84 provides for the inspection and examination of vehicles as to their physical fitness for public patronage; section 85 provides: “ If, upon inspection, a public hack is found to be of lawful construction and.in proper condition * * * the same shall be licensed, by delivering to the owner a card * * (See, also, Cosby’s Code of Ordinances [Anno. 1925], p. 352.)
It thus appears that the duties of the commissioner are purely ministerial and that he is without authority to determine the question of the right of an owner to the use of a particular insignia. People ex rel. Hultman v. Gilchrist (114 Misc. 651; affd., 196 App. Div. 964; affd., 232 N. Y. 598) was likewise a case where a license was refused because of the color scheme of the cab, the commissioner saying in his return: “ I concluded that it was in the interest of the public welfare, in view of those facts and adjudications, to refuse to issue licenses to hacks painted brown and white in simulation of the color scheme and combination of the hacks of the Twentieth Century Brown & White Taxicab Association, Inc.” In that case the court held that a peremptory writ of mandamus should issue, as the provisions of article 8 of chapter 14 of the Code of Ordinances of the City of New York not only indicate with accuracy the function of the commissioner of the department of licenses in regard to the issuance of licenses to operate taxicabs as public hacks for hire, but also suggest the reasonable limitations thereon to be the ascertainment of the safety and fitness of the cab and driver, the court saying: “As matter of common knowledge, unaided even by the precise provisions of the ordinances, I should be of opinion that the question whether vehicles infringe upon patents or trade marks or involve possibilities of unfair competition with other instrumentalities of transportation is entirely outside of the purview of the commissioner’s duties. This is confirmed by even a cursory examination of the other subjects of license placed under respondent’s control. There is a general provision in article 1 of this chapter listing the businesses or occupations required to be licensed, which, in alphabetical order, run from ‘ billiard and pool tables ’ through ‘ hand organs ’ to ‘ weighers of hay.’ There are also a number of special enactments like those (chap. 3) relating to licenses for amusements and exhibitions. It requires little stretch of the imagination to foresee the extent of the commissioner’s activities and the far-reaching results of their exercise if he should undertake to make the enjoyment of a license by a theatre or public exhibition depend upon his opinion whether the whole or a part of the building, the apparatus or the performance involved *281infringements on patents, copyrights, trade marks or other similar private interests.”
It follows that the order appealed from should be affirmed, with ten dollars costs and disbursements.
Clarke, P. J., concurs.
Order reversed, with ten dollars costs and disbursements, and motion denied, with fifty dollars costs.