17 Misc. 2d 161 | N.Y. Sup. Ct. | 1954
This is a proceeding pursuant to article 78 of the Civil Practice Act in which an order is sought annulling a determination of an “ alleged” Board of Appeals of the Incorporated Village of Freeport.
It appears that at the time of the hearing on the petitioner’s application to review a denial of a permit by the Superintendent of Buildings, a vacancy existed on the Board of Appeals. The petitioner requested an adjournment on the ground that there was no Board of Appeals in existence. His request was denied and the hearing proceeded without any further participation in it by him.
Although section 179-b provides that the concurring vote of a majority of the board is sufficient to make a determination, and section 41 of the General Construction Law states that the majority of the “ whole number ” of a board shall constitute a quorum, neither section upholds the respondents’ contention that three members may act when only four members have been appointed. As the statute provides for a five-member board, there must be five appointed even though all need not be present to conduct a meeting.
In view of the foregoing, I consider it unnecessary to pass upon the other questions involved. The determination will be annulled and the matter returned to a lawfully constituted Board of Appeals for another hearing.
Settle order on notice.