(dissenting): The Court of Appeals in its opinion on the prior appeal herein said: “ The petitioner can succeed only if he establishes a clear legal right to a license. It follows that every allegation which, if proven, would establish or defeat such legal right is material. The Legislature may vest in a licensing officer a measure of discretion in granting or refusing a license. It determines the field of administrative discretion. Into that field the courts may not enter. Refusal to grant a license is arbitrary only when it is not based on a reasonable exercise of the discretion vested in the licensing officer. The limits of reasonable discretion are transgressed where refusal is based upon a ground which under the statute the licensing officer may not consider or upon a ground which is not supported by any evidence. (Matter of Larkin Co. v. Schwab, 242 N. Y. 330.) (Matter of Small v. Moss, 277 N. Y. 501, 507.) ” A reading of the testimony in the record now before the court clearly shows that the commissioner’s determination is supported by the preponderance of the evidence.
There is no rational basis for an analogy between the site here in question and the congested theatre district of Broadway and Forty-second street, Manhattan. Cars moving into the latter district are moving into what they know to be a congested area. Drivers of cars coming down Riverdale avenue into this site could not know until they had rounded the curve adjacent to this property that they were coming into the traffic congestion, vehicular *6and otherwise, that would undoubtedly be created by locating a theatre at the unique and exceptional location disclosed in this record. On this aspect of the case the question is not whether this court in the first instance exercising its own discretion would have granted or denied the license. The issue is, whether there is any evidence to support the commissioner’s exercise of his discretion. As stated by Roscoe Pound, former dean of Harvard Law School, in his recent testimony before a sub-committee of the Senate Judiciary Committee of the United States Senate: “ The purpose of judicial review is not to substitute the court for the administration but to insure that the administration is kept within the limit prescribed by the law with respect to power and that its proceedings are in accordance with the processes of law.” *
While fully discussing the facts and indicating disagreement with the commissioner’s determination, the majority has placed its reversal on the ground that the commissioner had no right whatever to consider the fact that there were traffic hazards as a basis of the exercise of his discretion and emphasizes the fact that no report is required by the police department which ordinarily regulates traffic in the ciby of New York, whereas reports are required from the fire department and other city departments. That no report is required by the police department is readily understandable since by the terms of the charter the duties formerly performed by the police department with regard to the location of theatres are expressly vested in the commissioner of licenses.
By sections 640 and 641 of the Greater New York Charter (in effect at the time this proceeding was commenced), the commissioner of licenses is vested with the control ot the granting and revoking “ of all licenses in relation to theatres and concerts now issued * * * by the police commissioner; ” and the said commissioner of licenses is further endowed thereby with all the powers previously exercised “ by the police commissioner in relation to theatres and concerts; ” and section 641 specifically states that approval or-rejection of a license shall in no case depend upon the “ consent, approval or recommendation of any other department ” of the city.
The New York City Code of Ordinances expressly provided (Chap. 3, art. 2, § 33): “ Applications for motion-picture theatre licenses * * * shall be made to the Commissioner of Licenses, who shall pass upon the location of the theatre and upon the character of the applicant for the license.” (Italics mine.) This mandatory direction of the legislative body with regard to the “ location ” is *7a broad one and the mere fact that there is no reference to the matters that may be considered in connection with the question of “ location ” is an indication that such body did not intend to restrict it as it is restricted by the determination of the majority. Clearly among the considerations which the commissioner may take into account with regard to locality is the consideration of public safety, as to which the commissioner quite properly stated that he felt in this case a grave responsibility. And there is no warrant whatever for restricting to theatre patrons only the consideration of public safety concededly an element the commissioner may properly consider.
As a matter of fact, the record shows that the police department entirely concurs in the conclusion reached by the commissioner that the location of a theatre at this site would create a dangerous traffic hazard. The assistant engineer attached to the chief engineer’s office of the police department of the city of New York, an expert in traffic surveys and studies and a completely disinterested witness, not only testified that a theatre at the particular point would constitute a traffic hazard, but gave in detail the facts upon which he based that reasoned conviction, all of which amply supported the commissioner’s determination, and it was further stipulated that if called Police Captain Reilly of the traffic precinct would also testify that the erection of a theatre at the proposed site would constitute a traffic hazard.
Defendant made out a clear case of public danger justifying the commissioner’s decision within the limits of the discretion which the legislative body granted to him. The order of the Special Term denying the peremptory order of mandamus should be affirmed.
Order reversed, with twenty dollars costs and disbursements, and a final order directed to be entered, Settle order on notice.
75th Congress, 3rd Session on S. 3676, a bill to establish a United States Court of Appeals for Administration.