137 Misc. 806 | N.Y. Sup. Ct. | 1928
The petitioners here seek to review by order of certiorari a decision of the board of standards and appeals awarding
The contention is made, however, that the board is a quasi judicial body, and cannot rehear a proceeding which has once been determined by it, and People ex rel. Swedish Hospital in Brooklyn v. Leo (120 Misc. 355; affd., 215 App. Div. 696) is cited in its support, and Hoffman v. Fraad (130 Misc. 667) and McGarry v. Walsh (213 App. Div. 289) are cited to the same effect. While it is true that the mere fact that the board goes through the form of hearing a new application is no reason for stating that the board cannot in fact review its own decision, it is my opinion that these cases are in no ways determinative of the present situation. While two former applications had been made to obtain permission of use for garage purposes, it seems clear that the proposed structures were different in size and appointment and design; that the situations were different with respect to tbeobj ecting and consentin g property owners; that large improvement had been later made on premises adjoining, and that street and traffic congestion was a factor not present on the former occasions to the same extent. The authorities above cited must be read in the light of the facts they dealt with. As the justice who wrote the first opinion referred to said in a later decision: “ If the facts and situation were the same in both appeals, the prior decision would seem to be binding and require a similar holding in the later appeal. But if there had been a substantial change the matter would be open for a new determination. Whether there was such a change would be primarily for the board to determine.” The record here disclosing substantial changes in character and design, the cases above cited are inapplicable.
Nor is there merit to the other points raised that the objectants, having acted in good faith, had purchased their property in reliance on the board’s previous decisions that they acquired vested rights which could not be impaired, and their contractual obligations were being thus violated. Property whenever purchased and held is
The determination of the board of standards and appeals is affirmed, with costs. Settle order on notice.