North American Holding Corp. v. Murdock
| Decision Date | 08 July 1959 |
| Citation | 190 N.Y.S.2d 708,6 N.Y.2d 902 |
| Parties | , 160 N.E.2d 926 Application of NORTH AMERICAN HOLDING CORP., Respondent, for an Order of Certiorari v. Harris H. MURDOCK, et al., Constituting the Board of Standards and Appeals of the City of New York, Appellants. |
| Court | New York Court of Appeals Court of Appeals |
Appeal from Supreme Court, Appellate Division, First Department, 6 A.D.2d 596, 180 N.Y.S.2d 436.
Petitioner brought certiorari proceeding to review order of Board of Standards and Appeals of the City of New York denying petitioner's application for use variance under zoning resolution.
The Supreme Court, Special Term, Bronx County, John L. Flynn, J., 9 Misc.2d 632, 167 N.Y.S.2d 120, entered an order setting aside the denial of a variance and remitted the matter to the board for hearing in accordance with opinion, and the board appealed.
The Appellate Division, 6 A.D.2d 596, 180 N.Y.S.2d 436, dismissed the appeal, and held that in view of fact that rehearing ordered involved the making of new and independent record, board would be required to exercise its judgment and discretion with respect to matters duly presented to it or re-presented to it, and consequently the order was intermediate and not final, and an appeal therefrom did not lie, in absence of leave first having been obtained pursuant to statute to effect that, unless court directs otherwise, an appeal from an intermediate order may be taken only in conjunction with appeal from final order.
The board appealed to the Court of Appeals, contending that the proceeding was not governed by the provisions of the Civil Practice Act, §§ 1283 et seq., and 1304, providing that unless court directs otherwise, an appeal from an intermediate order may be taken only in conjunction with an appeal from the final order therein, and that a use variance on a hardship basis was properly denied.
The board appealed to the Court of Appeals.
Charles H. Tenney, Corp. Counsel, New York City (Seymour B. Quel, Alfred Weinstein and Joseph Entel, New York City, of counsel), for appellants.
Lamb & Lamb, New York City (Charles Lamb, William A. Lamb and Loretta A. Conway, New York City, of counsel), for petitioner-respondent.
Order affirmed, with costs.
All concur.
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...793 n. 5 (Mass.App.Ct.1992)); North Am. Holding Corp. v. Murdock, 6 A.D.2d 596, 180 N.Y.S.2d 436, 439 (1958), aff'd 6 N.Y.2d 902, 190 N.Y.S.2d 708, 160 N.E.2d 926 (1959); cf. Wheeler v. Maine Unemployment Ins. Comm'n, 477 A.2d 1141, 1145 (Me.1984) (remand is appealable if remand "requires o......
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...255 N.Y. 320, 174 N.E. 695; Matter of North Amer. Holding Corp. v. Murdock, 6 A.D.2d 596, 180 N.Y.S.2d 436, affd. 6 N.Y.2d 902, 190 N.Y.S.2d 708, 160 N.E.2d 926, as when a rate making order is reversed because based upon insufficient evidence, Matter of Yonkers Railroad Co. v. Maltbie, 251 ......
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