(dissenting):
The ordinance is void as it gives arbitrary and uncontrolled power to the board of trustees. It fixes no standard upon compliance with which an applicant can go before a court and obtain mandamus on the ground that the board of trustees has failed in the performance of a legal duty. It plainly permits discrimination and allows the board of trustees to apply restrictions in one instance that are not applied in another although the bases of the applications may be the same. (Yick Wo v. Hopkins, 118 U. S. 356, 366.) It is urged that this action is premature and that upon application reasonable restrictions will be made and all applicants treated alike. This is no answer to the claim that the ordinance is illegal. The legality of such an ordinance is not dependent upon what has been done in any particular instance; its legality is to be determined by what may be done under and by virtue of its authority. (Colon v. Lisk, 153 N. Y. 188, 194; Stuart v. Palmer, 74 id. 183; Gilman v. Tucker, 128 id. 190, 200; 2 McKinney’s Consolidated Laws, 34.)
Rich, J., concurs.
Judgment directed for defendants upon the agreed statement of facts, dismissing the complaint without prejudice, with costs.