Pelham Jewish Center v. Board of Trustees , 174 N.Y.S.2d 957 ( 1958 )

In a proceeding pursuant to article 78 of the Civil Practice Act, the appeal is from an order (1) granting respondents’ cross motion to dismiss the petition on the grounds (a) that legislative decisions may not be reviewed in a proceeding pursuant to article 78, and (b) that the court does not have jurisdiction of the subject matter of the petition, and (2) dismissing the petition and the proceeding without prejudice. Appellant’s property is situated in a “ Residence ‘A’ district” wherein, under applicable provisions of the zoning ordinance, no church or other house of worship may be situated. Appellant sought (1) to require respondents to discharge their duties by directing the village officials to consider appellant’s application for a permit as if certain zoning provisions, alleged by appellant to be unconstitutional, had not been enacted, and (2) to annul, as unconstitutional, respondents’ determination which denied its application to (a) repeal the zoning provisions as to it, and (b) grant a change of use for religious activities. Order unanimously affirmed, without costs. No opinion. Present — Nolan, P. J., Wenzel, Ughetta, Hallinan and Kleinfeld, JJ. [9 Misc 2d 564.]