Francis J. Riordan, of Buffalo, for petitioners.

Frederic C. Rupp, Corp. Counsel, and Kenefick, Cooke, Mitchell & Bass, all of Buffalo (Charles S. McDonough and Daniel J. Kenefick, Jr., both of Buffalo, of counsel), for respondents.

PER CURIAM. On the 31st day of October, 1927, the petitioners applied to the building commissioner of the city of Buffalo for a permit to place a gasoline tank in the rear of the premises No. 24 Armine place in Buffalo. This was in a residential district. The building commissioner referred the application to the board of appeals. Under the Buffalo Zoning Ordinance a board of appeals was established, and it was given power to hear appeals from decisions of the building commissioner; and it also has original jurisdiction to grant permits in specified cases after public notice has been given and a hearing had. Buffalo Zoning Ordinance, § 28, subd. (g).

[1] On or about November 4, 1927, the board of appeals caused notice of a public hearing in this matter to be held on the 23d day of November, 1927, to be published in the official paper of the city. On November 23, 1927, in pursuance to that notice, a public hearing was had, which was attended by the petitioners and by their counsel. At said hearing counsel for petitioner stated that they had received notice of the hearing, which notice had been served on the previous Sunday, and stated that he did not believe that the notice. was worth anything; but he made no motion to dismiss the proceeding because of insufficiency of the notice, and proceeded to take part in the hearing and examined witnesses. Evidence was taken. by the board, and it was very conflicting; but on this conflicting evidence the board of appeals granted the permit. It had jurisdiction in the matter, and could grant the permit, "provided that when such permit is issued there shall be on file with said board the consents duly signed and acknowledged of the owners of 65 per cent. of all the property within such area.

[2] It will thus be seen that, if the above conditions had been complied with, the board of appeals had original jurisdiction to grant this permit. In this case, however, no consents had been made and filed as required by paragraph 5 of subdivision (g) of section 28 of chapter 70 of the Ordinances of the City of Buffalo, known as the Buffalo Zoning Ordinance. The permit was granted to put a gasoline tank on the premises in a residential district, and the board acted without authority in granting the permit, in the absence of the consents required by paragraph 5 of subdivision (g) of section 28 of the Buffalo Zoning Ordinance, and its action was illegal and void.

(227 N.Y.S.)

Having reached this conclusion, it is unnecessary to discuss the other points raised by the petitioners. The certiorari order is sustained, and the determination of the board of appeals is reversed on the law, with $50 costs and disbursements, and the permit it granted is revoked.

Certiorari order sustained, and determination of board of appeals reversed on the law, and the permit revoked, with $50 costs and disbursements.

(131 Misc. Rep. 672)

SCOTT et al. v. TITUS et al., Town Board.

Supreme Court, Monroe County. February 27, 1928.

(Syllabus by the Court.)

Discovery ~41-Defendant may not examine petitioners for certiorari before return concerning matters not bearing on inferior tribunal's jurisdiction and proceeding's regularity (Civil Practice Act, §§ 288, 292). Under Civil Practice Act, §§ 288, 292, an examination of petitioners by defendant before return will not be granted in certiorari proceedings, of matters that do not bear upon the jurisdiction, power, and authority of the inferior tribunal, and the regularity of the proceedings sought to be reviewed.

In the matter of the application of E. Kelsey Scott and others for an order of certiorari to William S. Titus and others, comprising the Town Board of the Town of Irondequoit, Monroe County. On motion by defendants for an order for an examination of the plaintiffs to prepare their return for an extension of time. Motion for examination denied, and time for filing return extended. Wile, Oviatt & Gilman, of Rochester, for the motion. MacFarlane & Harris, of Rochester, opposed.

RODENBECK, J. This is a statutory proceeding, in which definite questions are reviewable. Civil Practice Act, § 1304. There is no authority for the consideration of the equitable defenses for which an examination is asked. The office of the writ is "the review of all questions of jurisdiction, power and authority of the inferior tribunal to do the acts complained of, and all questions of regularity in the proceedings; that is, all questions whether the in

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

ferior tribunal has kept within the boundaries prescribed for it by the express terms of the statute law or by well-settled principles of the common law." People v. Board of Assessors of City of Brooklyn, 39 N. Y. 81, 88. The Legislature has not yet turned this proceeding into the form of an equitable action, in which questions of waiver, laches, and estoppel are reviewable. Civil Practice Act, § 1304. The language at the end of paragraph 5 of the order of August 24, 1927, must be construed to refer to other acts and proceedings of the town officers relating to the subject to be reviewed.

The Appellate Division, may in its discretion, quash the writ and remand the petitioners to an equitable action in which the alleged defenses may be set up. People v. Stilwell, 19 N. Y. 531.

The motion for examination is denied, and respondents' time to file a return is extended to March 15, 1928.

So ordered.

LUBETKIN et al. v. D. S. STERN & CO., Inc.

Supreme Court, Appellate Division, Second Department. March 5, 1928. 1. Usury 127-Executors, not being actual borrowers, cannot sue to cancel usurious note, without restoring or offering to restore sum received by testator.

In action by executors to cancel loan made by testator as usurious, executors, not being actual borrowers, may not maintain action to cancel usurious notes and for return of collateral given thereunder without restoring or offering to restore to defendant sum actually received by testator.

2. Injunction ~144—Injunction against transferring collateral given for loan was improperly granted, where complaint failed to state case for canceling loan as usurious.

Complaint by executors to cancel loan made by testator as usurious, failing to allege restoration, or offer to restore amount received by testator, failed to state facts sufficient to constitute cause of action, and injunction pendente lite restraining defendants from transferring collateral given for loan was improperly granted.

Action by Estelle Lubetkin and another, as executors, etc., of Philip Lubetkin, deceased, against D. S. Stern & Co., Inc. From an order granting injunction pendente lite, against defendant, defendant appeals. Reversed, and motion denied.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(227 N.Y.S.)

Argued before LAZANSKY, P. J., and RICH, YOUNG, SEEGER, and CARSWELL, JJ.

Samuel Mann, of New York City, for appellant.

Irving S. Dorf, of New York City, for respondents.

PER CURIAM. Order reversed upon the law and the facts, with $10 costs and disbursements, and motion denied, with $10

costs.

[1, 2] Plaintiffs, not being the actual borrowers, may not maintain this action to cancel the alleged usurious notes, and for the return of collateral given thereunder, without restoring, or offering to restore, to defendant, the sum or sums actually received by their testator. Buckingham v. Corning, 91 N. Y. 525. The complaint failing, for this reason, to state facts sufficient to constitute a cause of action, the injunction pendente lite was improperly granted.

(131 Misc. Rep. 663)

PEARSON v. BRACE et al., Town Board of Owasco.

Supreme Court, Trial Term, Auburn County. February 7, 1928.

(Syllabus by the Court.)

Certiorari 55-Further return, eliminating affidavits not before officers when they took action, but verified subsequent to issue of certiorari, may be ordered (Civil Practice Act, § 1298).

Under section 1298 of the Civil Practice Act, a further return in certiorari may be ordered, eliminating affidavits not before the officers when they took action, and verified subsequent to the issuance of the writ.

In the matter of the application of Isaac E. Pearson for a certiorari order against Terry C. Brace, Supervisor, and others, constituting the Town Board of the Town of Owasco, County of Cayuga. On motion by the petitioner to strike out irrelevant matter in the return. Motion granted.

Frank S. Coburn, of Auburn, for the motion.

Frank C. Cushing, of Auburn, opposed.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

RODENBECK, J. The defendants, on December 4, 1925, rejected the bills presented by the petitioner, as a justice of the peace, for certain years. In their return the respondents have included a number of affidavits, verified since the action of the respondents upon these bills, showing the alleged illegal and fraudulent character of some of the charges. There is nothing in the return showing that the information contained in these affidavits was before the respondents. So far as appears by the return, the information was. gathered subsequent to the action of the town board and had no bearing upon such action. The affidavits, therefore, appear to be irrelevant matter, foreign to the subject under consideration. There must be authority for striking out such matter under the guise of a further return. (Civil Practice Act, § 1298.) In People ex rel. Joline v. Willcox, 198 N. Y. 433, 91 N. E. 1102, the matter which was stricken out (134 App. Div. 563, 119 N. Y. S. 641) was before the commissioners and was a basis for their determination. It was, therefore, not foreign to the subject under consideration, and was matter very appropriately to be considered upon the review of the return. "Great liberality is awarded officers or boards of officers, in making returns, as to the facts upon which they based their action." Id., 198 N. Y. at page 437, 91 N. E. 1103. But this does not go to the extent of permitting them to introduce ex parte evidence not before them when they took action.

Motion granted, requiring the defendants to make a further return, omitting the sixth paragraph of said return down to the words "said criminal docket," and the affidavits attached to the return mentioned therein, with $10 costs to abide event.

So ordered.