Albrecht v. Hochmuth

Order affirmed, with $50 costs and disbursements. Memorandum: Chapter VI of article V of the Ordinances of the City of Buffalo provides for the establishment and administration of two public markets in the city. It may be gathered therefrom and from the present record that stalls therein for many years have been sold to occupants who continue to pay the city an annual rental for the use thereof. Section 48 thereof gives such occupants a clear preference to annual lease renewals. In our opinion such preferential rights granted by the ordinance were not wiped out by the reconstruction in 1955 of the Broadway Market. While the ordinance does not in express terms provide for the continuance of preferred leasehold rights in stall space after the demolition of the old market and construction of a new one the intent of the City Council may be found in the May 17, 1955 amendment of section 48 which removed the stalls fronting on Broadway from the provisions thereof and placed them under section 101 of chapter III of article XI to be leased by advertised public bidding. Thus, it seems plain that the council intended that the stalls, previously occupied by these respondents, which did not front on Broadway, should continue to be leased to them under the preference granted by the section. This conclusion is fortified by the uncontroverted testimony that appellant at a council meeting promised to restore one of the respondents to the space formerly occupied by her and later repudiated the promise. The contention of appellant that he was vested with discretion in the assignment of stalls in the market is without merit. His duties are defined in sections 41 and 47 of chapter VI of article V, and are purely ministerial. Therefore, Special Term properly directed not only action but the particular manner of action. (22 Carmody-Wait on New York Practice, § 118, p. 117.) All concur. (Appeal from an order of Erie Supreme Court annulling defendant’s assignment of petitioners to a certain stall in the reconstructed Broadway Market and directing defendant to assign petitioners to a certain other stall.) Present — MeCurn, P. J., Vaughan, Williams, Bastow and Goldman, JJ.