Pelham Jewish Center v. Board of Trustees of Village of Pelham Manor

• Decision Date: 25 June 1958
• Citation: 4 N.Y.2d 1033,152 N.E.2d 650,177 N.Y.S.2d 686
• Parties: , 152 N.E.2d 650 Application of PELHAM JEWISH CENTER, Appellant, for an Order etc., v. BOARD OF TRUSTEES OF VILLAGE OF PELHAM MANOR et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 686

177 N.Y.S.2d 686

4 N.Y.2d 1033, 152 N.E.2d 650

Application of PELHAM JEWISH CENTER, Appellant, for an Order etc., v. BOARD OF TRUSTEES OF VILLAGE OF PELHAM MANOR et al., Respondents.

Court of Appeals of New York.

June 25, 1958.

Appeal from Supreme Court, Appellate Division, Second Department, 6 A.D.2d 710, 174 N.Y.S.2d 957.

Proceeding was brought under the Civil Practice Act, § 1283 et seq., against the mayor and board of trustees of village. Petitioner, whose property was situated in a 'Residence A district' wherein, under applicable provisions of zoning ordinance, no church or other house of worship could be situated, sought to require mayor and board of trustees of village to discharge their duties by directing village officials to consider petitioner's application for a permit as if certain zoning provisions, alleged by petitioner to be unconstitutional, had not been enacted, and to annul, an unconstitutional, determination which denied petitioner's application to repeal the zoning provisions as to the petitioner, and to grant a change of use for religious activities.

The Supreme Court, Westchester County, Eager, J., 9 Misc.2d 564, 170 N.Y.S.2d 136, dismissed the petition on ground that legislative decisions could not be reviewed in a proceeding pursuant to the Civil Practice Act, § 1283 et seq., and on ground that the court did not have jurisdiction of the subject matter of the petition, and the petitioner appealed.

The Appellate Division, 6 A.D.2d 710, 174 N.Y.S.2d 957, unanimously affirmed the order.

The petitioner appealed to the Court of Appeals, and motion was made in the Court of Appeals for a stay and for leave to have the appeal submitted to the Court of Appeals on June 23, 1958, and cross-motions were made in the Court of Appeals to dismiss the appeal and for certificate that a constitutional question was involved on the appeal.

Motion for a stay and for leave to have appeal submitted to the Court on June 23, 1958 denied.

Cross-motion to dismiss appeal granted and appeal dismissed upon the ground that there is not directly involved the construction of the Constitution of the State or of the United States.

Cross-motion for a certificate that a constitutional question is involved on the appeal herein denied.