242 A.D. 651 | N.Y. App. Div. | 1934
Peremptory mandamus order modified by striking therefrom the provision staying the board of trustees “ from voting upon the said proposed amendment of said zoning ordinance of said village unless and until said building permit shall first have been granted as hereinbefore directed,” and as- so modified affirmed, without costs. In our opinion, the Special Term was without power, in this mandamus proceeding, to enjoin the board of trustees from voting upon the proposed amendment of the village zoning ordinance, and petitioner’s vested rights, if any, may be protected in a subsequent action or proceeding. The board of trustees directed the building inspector not to approve the plans, although they were in accordance with regulations. If this direction had not been given, the plans would have been approved and the permit issued as a matter of course. This direction of the board of trustees tp the building inspector was in effect a refusal to issue the permit. Therefore, the motion for a peremptory mandamus order against the building inspector for action on the plans, and against the board of trustees for the issuance of the bulling permit, was proper. The appeal from the order dated October 5, 1933, denying motion to vacate the order of October 2, 1933, is dismissed. Lazansky, P. J., Young, Kapper and Tompkins, JJ., concur; Davis, J., concurs for the dismissal of the appeal from the order dated October 5, 1933, but dissents and votes for a reversal of the peremptory mandamus order on the ground that the practice followed was erroneous and improper. The board of trustees had not failed or refused to act on the building inspector’s approval of the plans at the time the peremptory mandamus order was made, and, therefore, the court was possessed of no authority or jurisdiction to command the board to act in a mutter in which it had not yet failed or refused to perform a duty. The injunction granted without legal authority interfered with the legislative acts of the board. Had there been no such interference the board might properly and legally have carried out its plans to amend the zoning ordinance, and thereafter could properly have refused to issue a permit, for the applicant seeking the permit would have had no vested right on which to base its demand therefor. The issuance of such permit has now been ordered by means of illegal use of legal process; and the procedure adopted should not be sanctioned.