Opinion
March 28, 1949.
Present — Nolan, P.J., Carswell, Sneed, Wenzel and MacCrate, JJ.
Proceeding under article 78 of the Civil Practice Act to review a determination of the zoning board of appeals of the city of Yonkers which granted to intervener-respondent a variance of rear-yard area requirement in a residence "S" district under the Amended Building Zone Ordinance of that city, transferred to this court under section 1296 of the Civil Practice Act. The determination of the board of appeals is unanimously confirmed and the petition dismissed, with one bill of $50 costs and disbursements to respondents and intervener-respondent jointly. The board of appeals had jurisdiction to entertain this second application for a variance. ( Matter of Reed v. Board of Standards Appeals of City of N Y, 255 N.Y. 126, 133; Ellsworth Realty Co. v. Kramer, 268 App. Div. 824.) Facts established by the record presented a situation in which the board of appeals had power to grant the relief sought. (General City Law, § 81, subd. 4; Amended Building Zone Ordinance of City of Yonkers, § 19, subd. [B]; People ex rel. Helvetia Realty Co. v. Leo, 183 N.Y.S. 37, affd. 195 App. Div. 887, affd. 231 N.Y. 619.) The board of appeals, in the exercise of its discretion, has granted the variance, and this court may not, in the absence of arbitrary action by the board, overrule its determination. ( Matter of Levy v. Board of Standards Appeals of City of N.Y., 267 N.Y. 347, 351; Matter of Reed v. Board of Standards Appeals of City of N.Y., supra; People ex rel. Sullivan v. McLaughlin, 266 N.Y. 519.)