Pierce v. Mannion

267 A.D. 958, 47 N.Y.S.2d 205, 1944 N.Y. App. Div. LEXIS 5740

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 3, 1944
• Status: Published

Opinion

Order insofar as it denies the application for an order directing the Board of Zoning Appeals of the village of Roslyn to correct the minutes of its meeting of August 16, 1943, so as to show the adoption of a resolution reversing the determination of the Superintendent of Public Works and granting petitioner’s appeal therefrom and directing the issuance of a certificate of occupancy, reversed on the law, without costs, and the application granted, without costs, to the extent of directing respondents to convene as such Board and to correct the minutes of the meeting of August 16, 1943, so as to show the adoption of a resolution reversing the determination of the Superintendent of Public Works and directing the issuance of a certificate of occupancy by a vote of three to two and, upon correction of such minutes, immediately to file the decision of the Board upon such appeal in the office of the Board. The showing was sufficient to establish that a majority of the members of the entire Board voted in favor of a resolution granting the application of the petitioner for a certificate of occupancy on his appeal from the denial of such application by the Superintendent of Public Works. The failure to note this determination was due to a misapprehension of the law. The vote constituted the actual determination and the petitioner is entitled in this proceeding to a direction that the clerical procedure necessary to effectuate it be complied with. (Village Law, § 179-b; People ex rel. Burroughs et al. v. Brinkerhoff, 68 N. V. 259; Matter of Smidt v. McKee, 262 N. V. 373.) The appeal from that part of the order which denies reargument is dismissed. Close, P. J., Hagarty, Carswell, Johnston and Aldrich, JJ., concur. [180 Misc. 775.]