Dr. Bloom Dentist, Inc. v. Cruise

Sherman, J.

Petitioner, being desirous of erecting an electric sign upon premises leased by it in the borough of Manhattan, made application to the superintendent of buildings and received his formal approval; thereafter, its like application to the commissioner of water supply, gas and electricity was also approved.

Armed with these sanctions, petitioner applied to the city clerk of the city of New York for a permit to erect the sign, as provided in section 215 of article 16 of chapter 23 of the Code of Ordinances of the City of New York, viz.: “ Section 215, subdivision 2. Issue of permits. All permits for illuminated signs shall be issued by the city clerk, upon application therefor, approved by the commissioner of water supply, gas and electricity and the superintendent of buildings in the case of electric signs, * *

The issuance of this certificate has been refused upon the ground that the Board of Regents of the State of New York has adopted a regulation relating to dentists and declaring “ unprofessional and objectionable,” “ advertising by means of large display, glaring, illuminated or flickering fight signs.”

Applicant’s petition for an order of peremptory mandamus followed and was denied at Special Term. Hence this appeal.

Respondent, under the ordinance, was given no discretion to reverse the approval of the erection of the sign theretofore given by the heads of the city departments which had power to examine and grant or reject the application. Upon them rested the full responsibility. Resppndent’s duty was purely ministerial. His certificate would merely attest and be proof of their action.

Perhaps the proposed sign is in contravention of the rule adopted by the Board of Regents under paragraph 4 of subdivision B of section 1313 of the Education Law. If so, a permit issued by respondent would constitute no defense to a proceeding or prosecution initiated by that body or other competent public authority, under the statute.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Finch, P. J., Merrell and McAvoy, JJ., concur; Martin, J., dissents.