Gscheidle v. Murdock

280 A.D. 74, 111 N.Y.S.2d 740, 1952 N.Y. App. Div. LEXIS 3397

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 8, 1952
• Status: Published

Opinion

Per Curiam.

The issue in this proceeding was whether the nonconforming use of petitioner’s real property prior to the rezoning was different from the present or contemplated use — in the quality, but not in quantity of use.

Proof upon which the board of standards and appeals acted was so obscure, that the Special Term could not properly review the board’s determination without the taking of testimony as provided in subdivision d of section 668e-1.0 of the Administrative Code of the City of New York.

It is undisputed that petitioner was engaged in the business of local and long distance moving for some time prior to the zoning change. She is, therefore, entitled to continue such use. (Matter of 440 E. 102nd St. Corp. v. Murdock, 285 N. Y. 298, 304, 305; Matter of Horan v. Koehler, 258 App. Div. 729, affd. 282 N. Y. 573.) Whether the certificate of occupancy to be issued to petitioner by direction of the Special Term should also embrace, either wholly or in part, “ the operation of a shipping and storage business, including parking and storage and repairing of more than five commercial vehicles and more than three passenger motor vehicles, storage and carting and packing, loading and shipping of freight ” must be decided upon adequate proof to be taken upon notice to all parties.

The order appealed from should be reversed, with one bill of $20 costs aaid disbursements to the respondents-appellants and the interveners-respondents-appellants and the matter remitted to the Special Term to take testimony before disposing of the matter, and to determine on the basis of probative evidence the nature of the business conducted on petitioner’s premises prior to zoning and to direct issuance of a certificate of occupancy for such use accordingly.

Peck, P. J., Dore, Cohn, Van Voorhis and Bergan, JJ., concur.

Order unanimously reversed, with one hill of $20 costs and disbursements to the respondents-appellants and the interveners-respondents-appellants and the matter remitted to the Special Term to take testimony before disposing of the matter, and to determine on the basis of probative evidence the nature of the business conducted on petitioner’s premises prior to zoning and to direct issuance of a certificate of occupancy for such use accordingly. Settle order on notice.