223 A.D. 862 | N.Y. App. Div. | 1928
Order directing that a peremptory order of mandamus issue modified by directing that an alternative order of mandamus issue, and as so modified affirmed, without costs. The disputed questions of fact preclude the granting of a peremptory order herein. The allegations of fact respecting the alleged invalidity of the ordinance are very meagre but they should be inquired into and passed upon in order that the invalidity or validity of the ordinance may be determined. The issues with respect to the expenditure of moneys by the petitioner, if the latter become material as a result of the determination with respect to the validity of the ordinance, require the issuance of an alternative order. The validity or invalidity of the ordinance having a possible controlling effect upon the result herein, this fact entitles the petitioner to proceed in mandamus, despite the statutory provisions for a review by certiorari in section 179-b of the Village Law. (Matter of Isenbarth v. Bartnett, 206 App. Div. 546; 205 id. 845, 846; Matter of Hillsley Realty Corporation v. Vroman, 218 id. 855.) Rich, Kapper, Hagarty and Carswell, JJ., concur; Lazansky, P. J., dissents and votes for a denial of the motion upon the ground that the petition does not present any facts which show the invalidity of the zoning regulation.
