Third Department, March, 1922. [Vol. 200 judgment is final as to the city because its claim has been dismissed. If that were the end of the matter as to the city it might be said that the latter had no further interest except the right to appeal. But the claim of the city has been improperly dismissed as to the 5 acres and, therefore, it is in a position to insist that the usual practice shall be followed and that it shall not be subjected to double judgments and perhaps double appeals. It does not follow, however, that the proceedings already had before the Court of Claims are nugatory. The trial of the case is still pending before that court to be resumed at the point where it was suspended. There is another reason why this judgment should not stand. After the question of title had been submitted to the court and while the court had that question under consideration the city sought permission to amend its claim and introduce further oral and documentary evidence. The request was refused except that the city was permitted to introduce such documentary evidence as it desired. By the proposed amendment the city claims title to the entire appropriated area. This claim rests on the allegation that the westerly extremity of the point or peninsula a century ago was considerably to the east of where it now is; that Barren Island at that time extended southward so as to include what is now the appropriated area; that about the year 1830 the southern part of Barren Island was swept away and that Rockaway Point or Peninsula has since that time by a gradual process of accretion or by the violent shifting of sands extended westerly so as to include what was formerly the southerly part of Barren Island. It is true that this claim was made quite late in the progress of this litigation and it is urged that the city was negligent in not sooner advancing such theory. It seems to us, however, that the claims are of such magnitude and public character, affecting not only the interests of the city but perhaps other public interests as well, that more than ordinary latitude should be allowed in developing any evidence which may have a legitimate bearing on the ownership of the property. If the excluded evidence should prove valueless no harm will result to any one from its admission. If it should result in turning the decision in favor of any party its exclusion would be a grievous miscarriage of justice. It is not urged that the court had not the power to permit an amendment of the claim as requested by the city, and conceding the existence of such power we think the discretion of the court should have been exercised in favor of such amendment and the reception of any evidence relevant to the substantiation of such an amended claim. We are not unmindful that a similar contention in regard to the southern extension of Barren Island was litigated in the case of Van Deventer v. Lott App. Div. 172] (172 Fed. Rep. 574; same case on appeal, 180 id. 378) and determined adversely to the contention of the city in the present litigation. In that case on appeal (180 Fed. Rep. 378) it was held among other things that no part of Rockaway Point was ever occupied by the upland of Barren Island. The court said: "In other words if a line were drawn east and west through the most southerly high water mark to which the Island ever extended it would be considerably to the north of the most northerly portion of the land in controversy." That case, however, was decided as a question of fact and is not binding on the city in this litigation and if the city can produce evidence in support of its contention not produced in the Van Deventer case it may be entitled to a different result. Although the court received the documentary evidence of the city on this branch of the case it excluded oral evidence and disallowed the proposed amendment to the city's claim and made no findings in respect thereto. It is quite clear that the court did not consider the evidence thus received or make any decision based thereon. This part of the case has not been decided or even fully tried. We think the city should be given an opportunity to develop its facts and should have a decision on all the facts thus developed. The city sought relief from certain stipulations it has made. Reference has already been made to one such stipulation consenting that the conflicting claims be determined by the Court of Claims. Such stipulation was clearly within the authority implied by sections 268-a and 281 of the Code of Civil Procedure and no reason was shown by the city why it should be relieved therefrom. There are other stipulations, however, relating to procedure and proof which may have a bearing on the claim of title as made by the city. The city claims the right to arbitrarily withdraw from any stipulation so made by its corporation counsel. To this we do not assent. The stipulations were such as might have been ordinarily made in the course of litigation by attorneys representing private interests and section 255 of the Greater New York charter (Laws of 1901, chap. 466, as amd. by Laws of 1917, chap. 602) expressly confers such power on the corporation counsel. It may be, however, that circumstances exist which would justify the court in its discretion in relieving the city from such stipulations. No formal motion to be thus relieved and no reasons for such relief were presented to the court. But the case is still on trial and it may not be too late to make such motion based on appropriate reasons therefor. If it should transpire that the stipulations were ill advised or that they do not speak the truth and that the corporation counsel in making the same was under a misapprehension it may Third Department, March, 1922. [Vol. 200 be that a proper case will be presented for the favorable consideration of the court. (See Donovan v. Twist, 119 App. Div. 734.) We are not intimating that such a motion should be granted. Neither are we at liberty to anticipate that it will not be granted. We have thus in a general way referred to the possibilities which may occur in the progress of the trial still pending before the Court of Claims, and it is manifest from what has been said that any discussion of the merits of the controversy at this time would be premature. We do not know what the condition of the record will be when the trial is concluded. The judgment should be reversed, without costs, and the proceeding remitted to the Court of Claims to conclude the trial. All concur. Judgment reversed, without costs, and proceeding remitted to the Court of Claims to conclude the trial. In the Matter of the Petition of EDWIN E. BECKER, Respondent, for a Peremptory Writ of Mandamus Directed to GEORGE R. LUNN, as Mayor of the City of Schenectady, Appellant. Third Department, March 8, 1922. Municipal corporations officers - peremptory mandamus to compel inspection of books in mayor's office relating to receipts and disbursements by him of license money received for permission to exhibit Sunday motion pictures — inspection includes right to make copy — said records in mayor's office are public motion by defendant to submit additional affidavit and to reopen and reargue proceeding properly denied. The right granted by section 51 of the General Municipal Law to any taxpayer to inspect the books, etc., in the office of any municipal officer includes the right to take extracts or copies therefrom. The records kept by the mayor of the city of Schenectady, showing the receipt of moneys paid to him by moving picture exhibitors, under an ordinance authorizing the exhibition of Sunday motion pictures, and the disbursement by the mayor of said moneys so received, are public records subject to inspection by any taxpayer under section 51 of the General Municipal Law, and it is not within the province of the mayor to declare that said records are private records. The order denying the motion by the defendant to submit an additional affidavit and to reopen and reargue the proceeding was properly granted because it appeared that such affidavit was irrelevant to the questions involved and could not affect its determination. APPEAL by George R. Lunn from an order of the Supreme Court, made at the Montgomery Special Term and entered in the office of the clerk of the county of Schenectady on the 5th day of November, 1921, granting relator's motion for a peremptory mandamus order requiring the appellant to allow and permit the relator to make an examination and inspection of certain books, bills, etc., App. Div. 178] Third Department, March, 1922. relating to the moneys or license moneys paid to him by the exhibitors of Sunday motion pictures in the city of Schenectady, and also from an order made at the Schenectady Special Term and entered in said clerk's office on the 7th day of December, 1921, denying appellant's application to submit an additional affidavit, to reopen the proceeding to reargue the motion for the mandamus order, and to cancel and vacate said peremptory mandamus order. George B. Smith, for the appellant. Fryer & Lewis [Charles G. Fryer of counsel], for the respondent. COCHRANE, P. J.: On February 9, 1920, the common council of the city of Schenectady enacted an ordinance authorizing the exhibition of Sunday motion pictures. The ordinance did not in terms require the payment of any fee for the privilege of giving Sunday exhibitions but it prohibited them without a permit and provided that such permit should be issued by the mayor in his discretion and contain such terms and conditions as he might prescribe and that such permits might be revoked or renewed at any time in his discretion. By a prior ordinance in force since the year 1906 a license fee was required of theatres including moving picture theatres which fees have been received by the mayor and by him turned over to the city treasurer. As a matter of fact the Sunday exhibitors since the ordinance of February 9, 1920, have paid to the mayor in addition to the fees fixed by the 1906 ordinance certain amounts stated generally to have been five per cent of their gross Sunday receipts. The mayor admits that he has thus received about $7,200, substantially all of which he has disbursed to various needy persons and charitable organizations as in his judgment seemed proper. The petitioner, a resident and taxpayer of the city, seeks to inspect the records, books and all documents on file in the mayor's office relating to the receipts and disbursements by him of any money derived from the exhibition of Sunday moving pictures and to make copies and to take extracts therefrom. Section 51 of the General Municipal Law declares: "All books of minutes, entry or account, and the books, bills, vouchers, checks, contracts or other papers connected with or used or filed in the office of, or with any officer, board or commission acting for or on behalf of any county, town, village or municipal corporation in this State are hereby declared to be public records, and shall be open, subject to reasonable regulations to be prescribed by the officer, having the custody thereof, to the inspection of any taxpayer." The mandamus order under review being peremptory it is essential that the facts on which it rests should be admitted or be ascer Third Department, March, 1922. [Vol. 200 tainable from the mayor's opposing affidavits. Thus ascertained it appears that there are on file in his office records, entries or documents pertaining to the receipts and disbursements by him of moneys derived from Sunday moving picture exhibitions. He asserts that he is willing to exhibit the same to the petitioner and that he offered to do so and to explain the various entries and documents but that the petitioner appeared with a stenographer and demanded the right to make and take away copies of the entries and documents which he refused to allow. The question here involved, therefore, seems to be whether the right of "inspection " granted by the statute includes the right to copy the records so inspected. Inspection" means more than "perusal." It means: "Critical examination; close or careful survey" (Century Dictionary); "A strict or prying examination; close or careful scrutiny; investigation" (Webster's Dictionary). The right to copy seems to be a necessary incident of the right to inspect for otherwise the purpose of the inspection would largely be thwarted, or at least the person making the inspection would be subjected to much inconvenience and loss of time. Furthermore these records are by the statute above quoted " declared to be public records " and as such it would seem by analogy that they might be copied as well as public records of other offices. Such is the common understanding and the general practice save in exceptional instances which do not here exist. Discussion of this question, however, is unnecessary because it seems to be settled by authority in this State that the right of inspection includes the right to copy. (Cotheal v. Brouwer, 5 N. Y. 562; Henry v. Babcock & Wilcox Co., 196 id. 302; Matter of Martin, 62 Hun, 557; affd., on opinion below, 133 N. Y. 692; People ex rel. Spire v. General Committee, 25 App. Div. 339; People ex rel. Lorge v. Consolidated National Bank, 105 id. 409.) The mayor contends that the payment of these moneys by the Sunday moving picture operators was voluntary on their part; that the moneys did not belong to the city; that he received and disbursed them not officially but as a private citizen and that the public has no right or interest in respect thereto. All that may or may not be true. The argument is beside the question. We are not now considering the propriety or legality of the mayor's acts in receiving and disbursing the money. But he as mayor was clothed with the absolute power of life or death in respect to these Sunday exhibitions. To him as the sole repository of such power was paid a generally uniform percentage of the receipts therefrom. It is idle to argue that such moneys would have been paid to him if he had not been mayor and that such payments do not, therefore. |