Opinion
October 9, 1939.
Present — Lazansky, P.J., Carswell, Johnston, Adel and Taylor, JJ.
Order denying, without prejudice, petitioner's motion to amend and correct a decision of the board of appeals of the town of Islip in the matter of an appeal of Benjamin W. Hawkes from a ruling of a building inspector of the town of Islip unanimously affirmed, with ten dollars costs and disbursements. The basic question here involved was decided in Matter of Dempsey v. Koehler ( 257 App. Div. 825; Id. 826). It was there held that Koehler did participate in the entire proceedings despite his announcement at the outset that he would not sit in the matter, and he was legally free so to do. At the same time the substantial question involved was determined to the effect that the evidence established overwhelmingly that the intervenor's property was used for business purposes at the time of the enactment of the zoning ordinance and, therefore, came within the saving clause of that ordinance.