Wightman v. Foster

237 A.D. 906

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 15, 1933
• Status: Published

Opinion

Order denying motion for a peremptory mandamus order and directing the issuance of an alternative mandamus order reversed on the law, with costs, and motion for peremptory mandamus order granted as a matter of law and not in the exercise of discretion, with costs. On the facts here shown, the petitioner clearly was entitled to his permit. The change proposed to be made in the use of the property by the owner is such a slight varia^tion from the existing use thereof as to cause no interference with the health, safety and welfare of persons living in the vicinity under the circumstances shown by the record. The refusal to grant a building certificate indicates a purpose to adhere too closely to the strict terms of the ordinance without giving sufficient consideration to the owner’s prior use, his present plans and needs, and the likelihood that there will be no injury to the general zoning plan. Hagarty, Scudder and Davis, JJ., concur; Lazansky, P. J., concurs in result; Kapper, J., dissents and votes to affirm.