Matter of Barns v. Osborne , 286 N.Y. 403 ( 1941 )

This proceeding was brought under article 6-A of the Village Law (Cons. Laws, ch. 64) for an order to review a decision of the Zoning Board of Appeals of the Village of East Hampton in the county of Suffolk. Section 179-b of the statute provides: "Any person or persons, jointly or severally aggrieved by any decision of the board of appeals * * * of the village, may present to a court of record a petition, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the grounds of the illegality. Such petition must be presented tothe court within thirty days after the filing of the decision inthe office of the board." (Italics supplied.)

The decision here sought to be reviewed was filed on July 27, 1940. A petition for review thereof together with a notice that the application was one for an order of review were served upon the Board on August 14, 1940, and were made returnable at the Special Term next to be held in Suffolk county on September 7, 1940. All the parties resided in Suffolk county where also their respective attorneys had their offices.

On the return day the Special Term on a cross-motion of the Board of Appeals dismissed the petition on the ground that it had not been presented to the court within thirty days after the filing thereof as required by the foregoing provisions of section 179-b of the Village Law. The Appellate Division affirmed. Petitioner has now brought the matter here by our leave.

We think the petition was "presented to the court" in the fair sense of section 179-b when (within the time limitation prescribed by that section) the jurisdiction of the court was invoked in accordance with the statutory provisions which regulate the practice respecting motions and orders.

The orders should be reversed, without costs, and the matter remitted to the Special Term for further proceedings in accordance with this opinion.

LEHMAN, Ch. J., LOUGHRAN, FINCH, RIPPEY, LEWIS, CONWAY and DESMOND, JJ., concur.

Orders reversed, etc.