(Download) "Matter Lemir Realty Corp. v. Edward P. Larkin Et Al." by Supreme Court of New York # Book PDF Kindle ePub Free
eBook details
- Title: Matter Lemir Realty Corp. v. Edward P. Larkin Et Al.
- Author : Supreme Court of New York
- Release Date : January 28, 1959
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 68 KB
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[8 A.D.2d 970 Page 970] In a proceeding to review a determination of the Town Board of the Town of Hempstead which denied an application for permission
to install gasoline storage tanks and to conduct a gasoline service station on premises described in the petition, the appeal
is from so much of an order as on reargument directed appellants to issue a permit for such installation and use unless appellants,
within 10 days, file a proper return. Order modified by striking from the ordering paragraph everything following the words
"upon reargument" and by substituting therefor a provision directing appellants to serve an amended answer, stating such facts
as may be pertinent and material to show the grounds of the action taken by them which is complained of, and also serve and
submit an affidavit made by a person having knowledge of the facts, or other written proof, showing such evidentiary facts
as shall entitle them to a trial of any issue of fact (see Civ. Prac. Act, § 1291), and a further provision permitting respondent,
in the event of a default by appellants in such service or submission, to apply to the court at Special Term for a final order
in its favor on the basis of the petition and accompanying papers (see Civ. Prac. Act, § 1297). As so modified, order unanimously
affirmed, without costs. The amended answer, and the affidavit or other written proof, shall be served or submitted within
20 days after the entry of the order hereon. We do not find it necessary to determine the precise nature of the function exercised
by appellants in granting or refusing special exceptions under the town building zone ordinance, or in granting or refusing
permits for the storage of gasoline or the use of property as a gasoline filling station. It is sufficient to say that in
making such determinations, the Town Board exercises judgment or discretion of a character which is reviewable as to reasonableness
in a proceeding pursuant to article 78 of the Civil Practice Act (cf. Matter of Rothstein v. County Operating Corp., 6 A.D.2d
711, affd. 6 N.Y.2d 728). Such being the case, appellants should have complied with the provisions of section 1291 of that
article, and, on their failure to do so, the Special Term could have rendered a final order against them on the basis of the
petition and accompanying papers (Civ. Prac. Act, § 1297). The Special Term granted the order appealed from, not for that
reason, however, but because of appellants' neglect to receive factual evidence and to make proper findings. The record does
not disclose that appellants have refused or neglected to receive factual evidence, and we are of the opinion that they were
not required, as a matter of law, to make findings in support of their determination.We are not unmindful of the requirement
that such findings be made by boards or officers required to exercise quasi-judicial or administrative functions pursuant
to [8 A.D.2d 970 Page 971]