Farrington v. Archer

255 A.D. 855, 7 N.Y.S.2d 530, 1938 N.Y. App. Div. LEXIS 5658

Opinion

Order denying petitioner’s application for a peremptory or an alternative order of mandamus directing respondent to issue a certificate of occupancy for the use of petitioner’s premises as a retail store, and dismissing the proceeding, reversed on the law, with ten dollars costs and disbursements, and proceeding remitted to Special Term for trial in accordance with section 1295 of the Civil Practice Act. In view of respondent’s waiver of defects in form, the proceeding will be treated as one against a body or officer under the present article 78 of the Civil Practice Act. The pleadings raise triable issues of fact as to whether the zoning ordinance, as applied to petitioner’s property, is so unreasonable as to be confiscatory. Hagarty, Davis, Johnston, Taylor and Close, JJ., concur.