Brannelly v. Donovan — 29 N.Y.2d 748

Majority

p. 748

In the Matter of Emily A. Brannelly, as Executrix of Walter J. Brannelly, Deceased, Respondent, v. John J. Donovan et al., Constituting the Board of Zoning Appeals of the Incorporated Village of Freeport, et al., Appellants.

Argued October 7, 1971;

decided October 21, 1971.

Michael Solomon and Oakley Gentry, Jr. for appellants.

Paul Edwin East for respondent.

Appeal dismissed, with costs, upon the ground that no constitutional question is presented, in the following memorandum: Not every denial or grant of a variance necessarily raises a substantial constitutional question (Salamar Bldrs. Corp. v. Tuttle, 29 N Y 2d 221 , decided herewith) and our examination of the complete record discloses that, despite some convenient reference appearing in appellants’ opposing papers on the prior motion to dismiss in this court [ 27 N Y 2d 1006 ], the purported constitutional question is an issue never litigated by either party. Instead, the appeal raises questions as to the existence of evidentiary findings alone, and for that reason should be dismissed.

Cases cited

Salamar Builders Corp. v. Tuttle 29 N Y 2d 221 N.Y. 1971-10-21 p. 748