282 A.D. 1068 | N.Y. App. Div. | 1953
In a proceeding under article 78 of the Civil Practice Act, it appears that the petitioner applied for a building permit for a gasoline service station in the town of Harrison; that the building inspector denied the application upon the ground that it was contrary to a 1951 amendment to the local zoning ordinance, which in effect prohibits the erection of all gasoline stations; that the petitioner thereafter appealed to the .local board of zoning appeals, which held that it was without jurisdiction, presumably because of the constitutional attack made by petitioner upon the amendment to the ordinance. Petitioner thereafter brought this proceeding. At Special Term it was held that the amendment to ■the ordinance is invalid, and the matter was remitted to the local board of zoning appeals to pass upon petitioner’s appeal from the determination of the building inspector. Petitioner appeals from so much of the order as remits the matter and as denies the application in other respects. Appeal dismissed, without costs. In Matter of Cherry v. Brumbaugh■ (255 App. Div. 880), this court held that the Supreme Court having taken jurisdiction of the proceeding might decide all the questions at issue, but nothing in that decision is contrary to the provisions of the order on appeal. Moreover, the petitioner in the present case invoked the jurisdiction of the' local board of zoning appeals. The present appeal is unauthorized. (Civ. Prac. Act, § 1304.) Present — Nolan, P. J., Adel, Wenzel, MacCrate and Beldock, JJ.