Little v. Richter

277 A.D.2d 1119

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 4, 1950
• Status: Published

Opinion

In a proceeding to review the determination of appellants in denying respondent’s application for a variance, the appeal is from an order transferring the proceeding to this court for disposition, pursuant to section 1296 of the Civil Practice Act. Appeal dismissed, with $10 costs and disbursements. The provisions of section 267 of the Town Law, with respect to hearings before a Special Term of the Supreme Court, do not prohibit the transfer of the proceeding to the Appellate Division in a proper case under article 78 of the Civil Practice. Act. (Cf. Matter of Long Island Lighting Co. v. Griffin, 272 App. Div. 551, affd. 297 N. Y. 897; Matter of Muller v. Zoning Board of Appeals of Town of Bamapo, 270 App. Div. 824.) This proceeding, in our opinion, could have been disposed of at Special Term, since it is not claimed that there was a failure to prove facts sufficient to sustain the determination made or, if there was such proof, that the determination is contrary to the weight of the evidence. The question presented on the review of such a determination is whether or not the action taken by the board clearly appears to be arbitrary, or is contrary to law. (People ex rel. Hudson-Harlem Valley Tit. & Mtge. Co. v. Walker, 282 N. Y. 400, 405.) However, we are required to dispose of the issues transferred (Civ. Prae. Act, § 1296), and the appeal must be dismissed, as there is no authority therefor under the circumstances presented. (Cf. Matter of Pollner v. Bruckman, 254 App. Div. 488; Matter of Muller v. Zoning Board of Appeals of Town of Bamapo, supra.) Nolan, P. J., Carswell, Johnston, Adel and Sneed, JJ., concur.