Collins v. Behan
| Decision Date | 13 March 1941 |
| Citation | 33 N.E.2d 86,285 N.Y. 187 |
| Parties | COLLINS et al. v. BEHAN et al. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, Third Department.
Proceeding under article 78 of the Civil Practice Act, s 1283 et seq., in the matter of the application of Charles E. Collins and another, doing business under the firm name and style of Charles Collins & Sons, against Joseph C. Behan, Chairman of the Board of Zoning Appeals, and others, to review a determination of the Board of Zoning Appeals of the City of Troy granting a variance of the zoning ordinance of such city so as to permit William Miney to erect a garage on premises owned by him in a residence zone, wherein William Miney intervened by express stipulation. From an order confirming determination of the Board of Zoning Appeals, 260 App.Div. 890, 22 N.Y.S.2d 553, petitioners appeal.
Order of Appellate Division reversed, and determination of Board of Zoning Appeals annulled, and proceeding remitted to Board of Zoning Appeals, with instruction. Lindsley McChesney, of Troy, for appellants.
Frank S. Parmenter, Corp. Counsel, of Troy (John P. Judge, of Troy, of counsel), for respondent Board of Zoning Appeals.
James T. Foley, of Troy, for intervener.
The record of the proceeding which resulted in the determination here presented for review is so inadequate that intelligent review is impossible. We cannot tell whether the determination is based upon such evidence as appears in the record, which is insufficient (Otto v. Steinhilber, 282 N.Y. 71, 76, 24 N.E.2d 851) or upon evidence not contained therein, which appears to be the case. To review a determination made by an administrative board there must be presented a record of all the evidence upon which the determination is based. The record must indicate the factual basis of the determination made. Matter of New York Water Service Corp. v. Water P. & C. Commission, 283 N.Y. 23, 27 N.E.2d 221;Matter of New York State Guernsey Breeders Co-operative v. Noyes, 284 N.Y. 197, 30 N.E.2d 471.
The order of the Appellate Division should be reversed and the determination of the Board of Zoning Appeals annulled, with costs to petitioners in all courts, and the proceeding remitted to the Board of Zoning Appeals with instructions to make findings of fact in support of whatever determination it may reach on the evidence, with leave to petitioners and to the intervenor to introduce further evidence upon another hearing,...
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