Neddo v. Schrade

CourtNew York Court of Appeals
Writing for the CourtFINCH
Citation200 N.E. 657,270 N.Y. 97
PartiesNEDDO et al. v. SCHRADE, Mayor, et al., Constituting the City Council (JACKSON, Intervener).
Decision Date03 March 1936

270 N.Y. 97
200 N.E. 657

NEDDO et al.
v.
SCHRADE, Mayor, et al., Constituting the City Council (JACKSON, Intervener).

Court of Appeals of New York.

March 3, 1936.


Proceeding in the matter of the application of Francis J. Neddo and others for certiorari order against Mayor Henry Schrade, Jr., and others, constituting the City Council of the City of Saratoga Springs, in which proceeding Musa Q. Jackson intervened. From an order of the Appellate Division of the Supreme Court, Third Department (245 App.Div. 794, 282 N.Y.S. 251), which confirmed a determination of the City Council of Saratoga Springs granting a change of zoning ordinance, petitioners appeal.

Judgment in accordance with opinion.


[270 N.Y. 97]Appeal from Supreme Court, Appellate Division, Third Department.
[270 N.Y. 98]
Walter A. Fullerton, George O. Tuck, James A. Leary, and Francis J. Neddo, all of Saratoga Springs, for appellants.

270 N.Y. 99]Ellis J. Staley, of Albany, Richard J. Sherman, David W. Burke, and William E. Bennett, all of Saratoga Springs, and George N. Ostrander, of Albany, for respondents.
FINCH, Judge.

This is an appeal from an order of the Appellate Division unanimously confirming the action of the city council of the city of Saratoga Springs in granting the petition of the intervener respondent to transfer property belonging to her from a partially restricted zone to one unrestricted so that a gasoline service station might be installed.

The intervener-respondent formerly occupied a large dwelling in a residential district. In the course of time this district changed from residential to commercial, consisting primarily of boarding houses and hotels, leaving this residence the last to succumb. Across the street, and directly opposite, one of the objectors is said to be operating a public auction sales and antique business in defiance of the zoning ordinance. Four gasoline stations exist within half a mile, one on the same block as the property of the intervener. The petitioners on the other hand urge that, since the building development in this district consists largely of hotels and residences remodeled [270 N.Y. 100]into boarding houses, the noise and odors arising from the operation of the gasoline filling station would be a source of great annoyance to the persons residing in or occupying these buildings. The accuracy of the picture thus presented, however, is of little importance, since the decision turns upon another point.

Upon the presentation of the petition by the intervener respondent, the city council duly resolved to receive, file, and refer it for advertising in a newspaper published in the city of Saratoga Springs, thereby setting a time and place for a public hearing.

Following several hearings and the submission of protests of near-by property owners, the petition was granted at a meeting of the city council at which all members were present, and all but one of them voted in the affirmative.

Following the rezoning, the petitioners apparently sought a statutory writ of certiorari provided for in section 82 of the General City Law (Consol.Law, c. 21) to review a decision of a board of appeals. No board of appeals having been established in the city of...

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37 practice notes
  • New York City Health and Hospitals Corp. v. McBarnette
    • United States
    • New York Court of Appeals
    • 30 Junio 1994
    ..."prerogative writ" unavailable as a vehicle for challenging an act of a legislative body (e.g., Matter of Neddo v. Schrade, 270 N.Y. 97, 200 N.E. 657; Matter of Long Is. R.R. Co. v. Hylan, 240 N.Y. 199, 148 N.E. 189; People ex rel. Trustees of Vil. of Jamaica v. Board of Superviso......
  • City Council of City of Santa Barbara v. Superior CourtIn and For Santa Barbara County
    • United States
    • California Court of Appeals
    • 1 Abril 1960
    ...Whiton, 3 A.D.2d 924, 162 N.Y.S.2d 680; Pelham Jewish Center v. Board of Trustees, 9 Misc.2d 564, 170 N.Y.S.2d 136, 138; Neddo v. Schrade, 270 N.Y. 97, 200 N.E. 657, 658-659; Larkin Co. v. Schwab, 242 N.Y. 330, 151 N.E. 637, The following cases uphold the principle that a court cannot direc......
  • Walker v. County of Los Angeles
    • United States
    • California Court of Appeals
    • 4 Agosto 1960
    ...Whiton, a A.D.2d 924, 162 N.Y.S.2d 680; Pelham Jewish Center v. Board of Trustees, 9 Misc.2d 564, 170 N.Y.S.2d 136, 138; Neddo v. Schrade, 270 N.Y. 97, 200 N.E. 657, 658-659; Larkin Co. v. Schwab, 242 N.Y. 330, 151 N.E. 637, 'The following cases uphold the principle that a court cannot dire......
  • Lakeland Water Dist. v. Onondaga County Water Authority
    • United States
    • United States Court of Appeals (New York)
    • 16 Abril 1969
    ...N.Y.S.2d 121, 222 N.E.2d 739; Matter of Paliotto v. Cohalan, 8 N.Y.2d 1065, 207 N.Y.S.2d 281, 170 N.E.2d 413; Matter of Neddo v. Schrade, 270 N.Y. 97, 102--103, 200 N.E. 657, 658--659; People ex rel. Trustees v. Board of Supervisors, 131 N.Y. 468, 471, 30 N.E. 488, 489; Matter of Brent v. H......
  • Request a trial to view additional results
37 cases
  • New York City Health and Hospitals Corp. v. McBarnette
    • United States
    • New York Court of Appeals
    • 30 Junio 1994
    ..."prerogative writ" unavailable as a vehicle for challenging an act of a legislative body (e.g., Matter of Neddo v. Schrade, 270 N.Y. 97, 200 N.E. 657; Matter of Long Is. R.R. Co. v. Hylan, 240 N.Y. 199, 148 N.E. 189; People ex rel. Trustees of Vil. of Jamaica v. Board of Superviso......
  • City Council of City of Santa Barbara v. Superior CourtIn and For Santa Barbara County
    • United States
    • California Court of Appeals
    • 1 Abril 1960
    ...Whiton, 3 A.D.2d 924, 162 N.Y.S.2d 680; Pelham Jewish Center v. Board of Trustees, 9 Misc.2d 564, 170 N.Y.S.2d 136, 138; Neddo v. Schrade, 270 N.Y. 97, 200 N.E. 657, 658-659; Larkin Co. v. Schwab, 242 N.Y. 330, 151 N.E. 637, The following cases uphold the principle that a court cannot direc......
  • Walker v. County of Los Angeles
    • United States
    • California Court of Appeals
    • 4 Agosto 1960
    ...Whiton, a A.D.2d 924, 162 N.Y.S.2d 680; Pelham Jewish Center v. Board of Trustees, 9 Misc.2d 564, 170 N.Y.S.2d 136, 138; Neddo v. Schrade, 270 N.Y. 97, 200 N.E. 657, 658-659; Larkin Co. v. Schwab, 242 N.Y. 330, 151 N.E. 637, 'The following cases uphold the principle that a court cannot dire......
  • Lakeland Water Dist. v. Onondaga County Water Authority
    • United States
    • United States Court of Appeals (New York)
    • 16 Abril 1969
    ...N.Y.S.2d 121, 222 N.E.2d 739; Matter of Paliotto v. Cohalan, 8 N.Y.2d 1065, 207 N.Y.S.2d 281, 170 N.E.2d 413; Matter of Neddo v. Schrade, 270 N.Y. 97, 102--103, 200 N.E. 657, 658--659; People ex rel. Trustees v. Board of Supervisors, 131 N.Y. 468, 471, 30 N.E. 488, 489; Matter of Brent v. H......
  • Request a trial to view additional results

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