Heller v. Rogers
| Decision Date | 05 July 1966 |
| Parties | In the Matter of Frank J. HELLER and Catharine Heller, Appellants, v. Ralph K. ROGERS, Mayor and Trustee, Bernard D. Atwood et al., constituting the Board of Trustees of the Village of Scarsdale, New York, Respondents. |
| Court | New York Supreme Court — Appellate Division |
Before UGHETTA, Acting P.J., and CHRIST, BRENNAN, HILL and HOPKINS, JJ.
MEMORANDUM BY THE COURT.
In a proceeding under former Civil Practice Act, article 78, to review the determination of the respondent Board of Trustees of the Village of Scarsdale denying an application to rezone petitioners' property, petitioners appeal from an order of the Supreme Court, Westchester County, entered October 7, 1963, which dismissed the petition.
Order, insofar as it relates to the petitioner, Catharine Heller, affirmed, with costs. Appeal, insofar as it relates to Frank J. Heller, held in abeyance pending further proceedings in accord with this memorandum.
The resolution of the Board of Trustees refusing to rezone petitioners' property was a legislative act and may not be reviewed in an article 78 proceeding (Matter of Paliotto v. Cohalan, 8 N.Y.2d 1065, 207 N.Y.S.2d 281, 170 N.E.2d 413; Matter of Pelham Jewish Center v. Board of Trustees of Vil. of Pelham Manor, 6 A.D.2d 710, 174 N.Y.S.2d 957, app. dismissed 4 N.Y.2d 1033, 177 N.Y.S2d 686, 152 N.E.2d 650; Matter of Iraci v. Harwood, 6 A.D.2d 815, 175 N.Y.S.2d 257). Appellants' brief discloses that the petitioner, Frank J. Heller, is now deceased. The record does not disclose the manner of the ownership by the petitioners of the property in question. If all the rights survived to the petitioner, Catharine Heller, then the proceeding could proceed with a notation in the record of the death (CPLR 1015, subd. (b)). Otherwise, the appeal of Frank J. Heller may not proceed until an executor or administrator has been appointed for his estate and substituted as a party (Goldbard v. Kirchik, 20 A.D.2d 725, 248 N.Y.S.2d 191; Speier v. St. Francis Church, 3 A.D.2d 732, 159 N.Y.S.2d 822). We note that in this case such further appeal will again necessarily result in affirmance of the order.
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