(dissenting). This is a taxpayer’s action under section 51 of the General Municipal Law to annul the permit granted by the park commissioner of the city of New York to the defendant Antonopulos for the maintenance of two refreshment booths in Battery Park in New York city as “ illegal, unlawful and unauthorized by law, and * * * in violation of the sections of the Charter of the City of New York.” The permit conferred upon Antonopulos the privilege of erecting two stands at his own cost where he might, subject to the control of the park commissioner, sell refreshments and food at prices to be approved by the park commissioner. The licensee was required to conform with all rules, regulations and orders of the park commissioner and to discharge summarily any servant or employee against whom the commissioner made complaint. His license was revocable upon a six months’ notice “ in the event that the spaces * * * shall be required for any public purpose,” but was to rim for ten years unless so revoked; he was to pay $4,000 a year for the privilege accorded to him. Pursuant to this license Antonopulos erected two booths at a cost of about $17,000. The location of the booths was in an isolated portion of the park, over-shadowed by the elevated railroad structure and surrounded by the subway entrances and ventilators; it was cut off from the main part of the park by a vehicular roadway, and, on substantially undisputed evidence, the trial court has found in effect that no part of the park really usable for recreation or rest has been diverted from such use. It is substantially uncontradicted that the two booths, designed by architects of the highest rank in their profession, are not only sightly in themselves, but serve to screen from the park view the unsightly appurtenances of the elevated railroad structure. It is also undenied that Battery Park is used extensively at the luncheon hour by persons employed in the neighboring office buildings and that the facilities to be offered by the defendant Antonopulos meet a public need. For the plaintiff it is urged that the booths will also serve passers-by coming up the marginal street of the park from the ferry, though it is conceded that this street is within the jurisdiction of the park department. It is also urged that the consideration exacted of Antonopulos is inadequate and that a similar store about 2,000 feet away within the Manhattan Terminal of the Staten Island Ferry rented for about $27,000 per year. It is to be noted, however, *57that Antonopulos is under the terms of the license not a free agent as to the prices he may charge, that he is required to erect the booths at his own cost, and that he takes the risk of losing his capital investment at any time upon six months’ notice.
Upon these facts we are asked to adjudicate that the park commissioner of' the city of New York has diverted park property from a park use. A license to use park property for restaurant purposes is not ipso facto a diversion from park use. (Gushee v. City of New York, 42 App. Div. 37; Williams v. Gallatin, 229 N. Y. 248, 254.) As was said in the latter case: “ Floral and horticultural displays, zoological gardens, playing grounds, and even restaurants and rest houses and many other common incidents of a pleasure ground contribute to the use and enjoyment of the park. * * * They facilitate free public means of pleasure, recreation and amusement and thus provide for the welfare of the community.”
We have no right to interfere with this license, therefore, unless we can find that the alleged park purpose assigned by the park commissioner is a mere sham and pretext for the lease of this property for business purposes. The Special Term has found that this was not the fact and on the undisputed évidence could properly have reached no other conclusion. Whether the decision of the park commissioner was wise or unwise is not a matter of judicial concern. The courts have no general supervision over legislative or executive authority and neither right nor power to interfere upon grounds of expediency with the action of administrative or legislative officers. (Bacon v. Miller, 247 N. Y. 311.)
For the above reasons the judgment appealed from should be affirmed, with costs. ■
O’Malley, J., concurs.
Judgment reversed and new trial ordered, with costs to the appellant to abide the event. Settle order on notice specifying the facts which are reversed.