Summary
In Matter of Hall v. Walsh (137 Misc. 448; affd., without opinion, 221 App. Div. 756) the Special Term, among other things, said: "If the facts and situation were the same in both appeals, the prior decision would seem to be binding and require a similar holding in the later appeal. But if there had been a substantial change the matter would be open for a new determination."
Summary of this case from Matter of Reed v. Board of Standards AppealsOpinion
January 5, 1927.
William H. Darrow [ Abel E. Blackmar of counsel], for the petitioners.
George P. Nicholson, Corporation Counsel, by William T. Kennedy, Assistant Corporation Counsel, for the defendants.
Michael F. Dee, for the intervenor.
Order of certiorari dismissed, and determination of board of appeals confirmed, with costs. The board, having decided an appeal, has no power to open the matter and rehear it on the same facts. ( People ex rel. Swedish Hospital v. Leo, 120 Misc. 355;
affd., 215 A.D. 696; Matter of McGarry v. Walsh, 213 id. 289.)
When, however, a new appeal comes to the board from a new ruling, the matter must be passed upon. I am not prepared to hold that in such a case the decision need not consider the prior determination. If the facts and situation were the same in both appeals, the prior decision would seem to be binding and require a similar holding in the later appeal. But if there had been a substantial change the matter would be open for a new determination. Whether there was such a change would be primarily for the board to determine.
Here it has so found and I find nothing in the record to justify a reversal of that finding. Having the power to make its decision, the discretion of the board in the absence of bad faith may not be reviewed. ( Matter of Boyd v. Walsh, 217 A.D. 461.) I see no suggestion of bad faith here.
The application seems a reasonable one and one that could properly be granted.