| N.Y. App. Div. | Feb 24, 1948
Final order dated July 1, 1947, in a proceeding under article 78 of the Civil Practice Act, directing the building ■ inspector of the Village of Rockville Centre to issue to respondents a building permit to alter a one-family dwelling into a two-famify- dwelling and, upon completion of such alterations, to issue a certificate of occupancy thereof, unanimously affirmed, with $50 costs and disbursements to respondents. Appeal from orders dated December 10, 1946, June 23, 1947, and June 30, 1947, dismissed, without costs. In our opinion subdivision 2 of section 1 of article IV of the Building Zone Ordinance (Ho. 51) of the Village of Rockville Centre, insofar as it requires the consent and permit of the board of appeals to such an alteration, is unconstitutional. (Matter of Small v. Moss, 279 H. Y. 288; Panama Refining Co. v. Ryan, 293 U.S. 388" date_filed="1935-01-07" court="SCOTUS" case_name="Panama Refining Co. v. Ryan">293 U. S. 388; Tick Wo v. Hopkins, 118 U.S. 356" date_filed="1886-05-10" court="SCOTUS" case_name="Yick Wo v. Hopkins">118 U. S. 356.) Upon the record here presented respondents were entitled to the permit as a matter of right. (Seattle Trust Co. v. Roberge, 278 U.S. 116" date_filed="1928-11-19" court="SCOTUS" case_name="Washington Ex Rel. Seattle Title Trust Co. v. Roberge">278 U. S. 116.) Present — Lewis, P. J., Johnston, Adel, Sneed and Wenzel, JJ.