Usherowitz v. Foley

In a proceeding pursuant to article 78 of the -Civil Practice Act to review a determination of the respondents, who constitute the Board of Standards and Appeals of the City of New York, denying the petitioner’s application for a variance so as to permit “the legalizing” of a certain one-family frame wood structure in the Borough of Brooklyn, City of New York, by the issuance of a certificate of occupancy therefor, the petitioner appeals from an order of the Supreme Court, Kings County, dated November 7, 1900, which denied his motion and dismissed his petition. Order affirmed, without costs. The structure involved had been moved from one plot to the rear of an adjoining plot, both plots being within the fire limits of the City of New York (see Administrative Code of City of New York, §§ C26-247.0, C26-4L0, C26-11.0). Objection No. 5 of the Borough Superintendent of the Department of Buildings contained a sufficiently complete statement showing that the facts upon which the administrative decisions under review were based supported those decisions, namely, the moving of the structure to a point “within the fire limits.” The reference, in the text of this Objection No. 5, to a certain section of the Building Code, section 4.1.7 (Administrative Code of City of New York, § C26-252.0), which might not be applicable to the situation, since that section deals with structures moved from outside the fire limits of the city, should be regarded as surplusage which did not prejudice the petitioner (cf. People v. Love, 306 N. Y. 18, 23; People v. Jacoby, 304 N. Y. 33, 40; People v. Dioquardo, 303 N. Y. 514; People v. Dwyer, 160 App. Div. 542, 547, affd. 215 N. Y. 46; People v. Ryan, 12 A D 2d 841; People v. Adler, 174 App. Div. 301). Ughetta, Acting P. J., Kleinfeld, Christ, Brennan and Hopkins, JJ,, concur.