Clark v. Fogelsonger

284 A.D. 832, 132 N.Y.S.2d 590, 1954 N.Y. App. Div. LEXIS 3591

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 8, 1954
• Status: Published

Opinion

Order affirmed, with $50 costs and disbursements. Memorandum: Our attention has not been called to any ordinance of the Town of Tonawanda regulating the disposal of sewage from residential properties, nor do we find any such ordinance or regulation. That is a matter within the jurisdiction of the Commissioner of Health of Erie County (see Sanitary Code of Erie Co., art. IV, § 6). The Sanitary Code clothed the Erie County Health Commissioner with authority to approve or disapprove the plan submitted by the petitioner. He has approved the plan. We find no statute or ordinance requiring a further approval by the town building inspector or the town building committee. While the refusal of the building committee to approve the plan and the consequential refusal of the building inspector to issue the permit to erect the building were, no doubt, well intentioned, nevertheless such refusal was in a legal sense arbitrary (see Matter of Larkin Co. v. Schwab, 242 N. Y. 330, 335). All concur. (Appeal from an order directing the issuance of a building permit in conformity with the plans and specifications filed.) Present — McCurn, P. J., Kimball, Piper, Wheeler and Van Duser, JJ.