In re Westchester Asphalt Distributing Corp. , 234 A.D. 881 ( 1931 )

Alternative mandamus order reversed on the law and the facts, with costs, and motion for mandamus order denied, with fifty dollars costs and disbursements, as a matter of law and not in the exercise of discretion. In our opinion the Special Term was without power to make the order nunc pro tunc as of June 26, 1931, and thereby disregard the amended zoning ordinance adopted June 29, 1931, which expressly prohibits the petitioner’s proposed use of its premises. We are also of opinion that the petitioner’s remedy was by an application to the board of appeals of the town, rather than by mandamus. Lazansky, P. J., Kapper, Hagarty and Tompkins, JJ., concur; Young, J., concurs in result.