Buffalo Red-I-Mix Concrete Corp. v. Foell

Appellate Division of the Supreme Court of New York

Buffalo Red-I-Mix Concrete Corp. v. Foell

1 A.D.2d 762, 147 N.Y.S.2d 404, 1955 N.Y. App. Div. LEXIS 3623

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 30, 1955

StatusPublished

This text of 1 A.D.2d 762 (Buffalo Red-I-Mix Concrete Corp. v. Foell) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Buffalo Red-I-Mix Concrete Corp. v. Foell, 1 A.D.2d 762, 147 N.Y.S.2d 404, 1955 N.Y. App. Div. LEXIS 3623 (N.Y. Ct. App. 1955).

Pincite

Opinion

Orders reversed upon the law, without costs of this appeal to any party, and petition dismissed without prejudice to bring such other or further proceeding as it may be advised. Memorandum: Absent a showing, which is not here present, that petitioner had a clear legal right to the relief sought, the orders appealed from should be reversed and the petition dismissed without prejudice to bring such other or further proceeding as it may be advised. The town clerk was without authority to issue a building permit in the absence of approval by the town board. On this record mandamus does not lie against the town clerk or the building inspector. We are unable to review the proceedings before the town board or the zoning board of appeals as such proceedings are not included in the record. All concur. (Appeal from two orders of Erie Special Term (1) directing the town clerk and building inspector to issue, on payment of fees, a building permit to petitioner for the erection of a ready mix concrete plant on petitioner’s property, and (2) affirming the provisions of the previous order after reargument and taking of testimony.) Present — McCurn, P. J., Vaughan, Kimball, Wheeler and Van Duser, JJ.

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Orders reversed upon the law, without costs of this appeal to any party, and petition dismissed without prejudice to bring such other or further proceeding as it may be advised. Memorandum: Absent a showing, which is not here present, that petitioner had a clear legal right to the relief sought, the orders appealed from should be reversed and the petition dismissed without prejudice to bring such other or further proceeding as it may be advised. The town clerk was without authority to issue a building permit in the absence of approval by the town board. On this record mandamus does not lie against the town clerk or the building inspector. We are unable to review the proceedings before the town board or the zoning board of appeals as such proceedings are not included in the record. All concur. (Appeal from two orders of Erie Special Term (1) directing the town clerk and building inspector to issue, on payment of fees, a building permit to petitioner for the erection of a ready mix concrete plant on petitioner’s property, and (2) affirming the provisions of the previous order after reargument and taking of testimony.) Present — McCurn, P. J., Vaughan, Kimball, Wheeler and Van Duser, JJ.

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Bluebook (online)

1 A.D.2d 762, 147 N.Y.S.2d 404, 1955 N.Y. App. Div. LEXIS 3623, Counsel Stack Legal Research, https://law.counselstack.com/opinion/buffalo-red-i-mix-concrete-corp-v-foell-nyappdiv-1955.