Caponi v. Walsh

232 A.D. 777

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 15, 1931
• Status: Published

Opinion

Order confirming report of official referee, sustaining certiorari order, reversing the determinations of the board of standards and appeals and revoking and annulling certain permits unanimously affirmed, with fifty dollars costs and disbursements. When the matter was remitted to the Special Term on the prior appeal the Special Term was directed to do that which, under our view of the facts, the board of standards and appeals should have done in the first instance; i. e., to reopen the case and have a new hearing. The refusal so to do was what was then reviewed by this court, and when the matter came before the Special Term it acted in the place and stead of the board of standards and appeals and its determination was a new and superseding final determination, the review of which is now here. Lazansky, P. J., Young, Carswell and Tompkins, JJ., concur; Hagarty, J., concurs in result, with the following memorandum: After the taking of testimony, final disposition of the matter was made upon the merits by the board of standards and appeals on the 23d day of April, 1929, when the chairman announced that “ the action of the board on December 11, 1928, stand as adopted.” The effect of this was to determine the matter upon the merits as of April 23, 1929, which sustains the order of certiorari.