Friedman v. O'Connell , 18 Misc. 2d 975 ( 1959 )

Edgar J. Nathan, Jr., J.

This is a proceeding pursuant to article 78 of the Civil Practice Act to review a determination of respondent, License Commissioner, revoking petitioners’ licenses as auctioneers. Although the Commissioner was not required to hold a hearing, one was held. If such hearing before the License Commissioner were mandatory, this proceeding would have been referred to the Appellate Division for disposition (Civ. Prac. Act, § 1296). As the hearing was not mandatory Special Term heard the application. The voluminous record and briefs have been studied, and the authorities and statutes considered. The court does not deem it necessary to review the facts in detail. It holds that there was sufficient before the Commissioner to support the finding that customers were defrauded by so-called auctions conducted at the three establishments in question. This was accomplished by outright misrepresentations in some instances and by scheme, trick or device which was tantamount to fraud in others. Petitioners were informed by the Department of Licenses that the establishments with which they were connected were conducting fraudulent auctions and were directed to cease operating or continuing their connection with establishments conducting such auctions, under penalty of forfeiting their license. They refused, and the Commissioner’s action in revoking their auctioneer licenses under the circumstances was neither arbitrary, capricious nor contrary to law. (Administrative Code of City of New York, §§ 773a-7.0, B32-149.0, B32-150.0.)

The petition is dismissed and the stay vacated.