Opinion
February 23, 1960
Present — Nolan, P.J., Ughetta, Kleinfeld, Pette and Brennan, JJ.
Appeal from an order dismissing the petition in a proceeding pursuant to article 78 of the Civil Practice Act. Appellant brought the proceeding to compel respondent to issue a building permit for the erection of an automobile service station in a residence "B" district, where such use is prohibited, and to declare the local zoning ordinance unconstitutional and void insofar as it limits appellant's property to the uses permitted in such a district. Order unanimously affirmed, with costs. Appellant, having asserted an invasion of its property rights, had the burden of establishing that the property was so situated that it was not reasonably adapted for residential use (cf. Vernon Park Realty v. City of Mount Vernon, 307 N.Y. 493, 499). In our opinion, appellant failed to sustain that burden, whether its burden was to establish its case merely by a fair preponderance of the credible evidence (cf. McKeon v. Van Slyck, 223 N.Y. 392, 397) or beyond a reasonable doubt (cf. Wiggins v. Town of Somers, 4 N.Y.2d 215, 218).