Moore v. Burchell — 14 A.D.2d 572

Majority

p. 572

In the Matter of Peter G. Moore et al., Appellants-Respondents, v. George D. Burchell et al., Constituting the Town Board of the Town of Mamaroneck, Respondents, and Grew Properties, Inc., Respondent-Appellant.

In our opinion neither petitioner has standing to bring this proceeding (R ice v. Van Vranken, 225 App. Div. 179 , affd. 255 N. Y. 541 ; Marcus v. Village of Mamaroneck, 283 N. Y. 325 , 332-333; Matter of Blum v. Board of Zoning & Appeals, 8 Misc 2d 403 ; Blumberg v. Hill, 119 N. Y. S. 2d 855 ; Matter of Hatten v. Silver, 19 Misc 2d 1091 ; Matter of Feldman v. Nassau Shores Estates, 12 Misc 2d 607 , affd. 7 A D 2d 757 ; Matter of Property Owners Assn. v. Board of Zoning Appeals, 2 Misc 2d 309 ; Point Lookout Civic Assn. v. Town of Hempstead, 22 Misc 2d 757 , affd. 12 A D 2d 505 ). In any event, on the merits, we think the assailed building permit was properly issued and is valid, and consequently the refusal to revoke it was justified (cf. Huggins v. Gulf Oil Corp., 5 A D 2d 747 ; Effell Realty Corp. v. City of New

p. 573

York, 165 Misc. 176 , 179, affd. 256 App. Div. 972 , affd. 282 N. Y. 541 ; Matter of Milton Point Assn. v. Clark, 14 Misc 2d 633 , 637). The corporation’s appeal from the two intermediate orders must be dismissed for several reasons: (1) such appeal has become academic in view of the affirmance of the final order; (2) the corporation was the prevailing party below, and hence it is not an aggrieved party; (3) its appeal is not “in conjunction with” its adversary’s (petitioners’) appeal from the final order; and (4) these two intermediate orders were not specified in petitioners’ notice of appeal from the final order (see: Civ. Prac. Act, §§ 557, 1304; Matter of Flanagan, 271 App. Div. 1014 ; Grabb v. Nicholas, 2 A D 2d 446 , 447; Matter of Kaplan v. Rohan, 7 N Y 2d 884 ; Matter of Schwartz, 89 F. 2d 172 , 173). Nolan, P. J., Kleinfeld, Christ, Pette and Brennan, JJ., concur.

Cases cited

Fairl v. International Railway Co. 255 N. Y. 541 N.Y. 1930-11-18 p. 572
Marcus v. Village of Mamaroneck 283 N. Y. 325 N.Y. 1940-07-24 at 332-333 p. 572
Blum v. Board of Zoning & Appeals 8 Misc 2d 403 N.Y. Sup. Ct. 1957-07-01 p. 572
Hattem v. Silver 19 Misc 2d 1091 N.Y. Sup. Ct. 1959-08-04 p. 572
Feldman v. Nassau Shores Estates, Inc. 12 Misc 2d 607 N.Y. Sup. Ct. 1958-02-28 p. 572
Property Owners Ass'n of Garden City Estate, Inc. v. Board of Zoning Appeals 2 Misc 2d 309 N.Y. Sup. Ct. 1953-05-26 p. 572
Point Lookout Civic Ass'n v. Town of Hempstead 22 Misc 2d 757 N.Y. Sup. Ct. 1960-03-28 p. 572
Huggins v. Gulf Oil Corp. 5 A D 2d 747 N.Y. App. Div. 1957-12-19 p. 572
Effell Realty Corp. v. City of New York 165 Misc. 176 N.Y. Mun. Ct. 1937-10-08 at 179 p. 573
Effell Realty Corp. v. City of New York 282 N. Y. 541 N.Y. 1939-12-28 p. 573
Milton Point Ass'n v. Clark 14 Misc 2d 633 N.Y. Sup. Ct. 1958-10-07 at 637 p. 573
Grabb v. Nicholas 2 A D 2d 446 N.Y. App. Div. 1956-11-14 at 447 p. 573