Leonard v. Tappen

244 A.D. 817

Opinion

The petitioner, a taxpayer and resident of the town of Oyster Bay, applied for a peremptory mandamus order requiring the town board to correct the minutes of its meeting, held on May 28, 1934, so as to show that a change in its zoning classification concerning the property was not accomplished and that no public hearing was had in respect to such change, and directing the building inspector to cancel a permit for the construction of a crematory. By a resettled order, the Special Term denied the application for a peremptory mandamus order but directed that an alternative order issue. The building inspector and the town board appeal from that part of the order which grants the application for an alternative order of mandamus. Resettled order, in so far as appealed from, reversed on the law and not in the exercise of discretion, with costs, and application denied, with ten dollars costs and disbursements. No issue of fact is presented and the court erred in granting an alternative order. On the facts, the petitioner is not entitled to relief. Lazansky, P. J., Hagarty, Tompkins, Davis and Johnston, JJ., concur.