Opinion
May 23, 1949.
Present — Nolan, P.J., Carswell, Johnston, Adel and Sneed, JJ. [See post, p. 1001.]
In a certiorari proceeding to review the action of respondents in amending the Building Zone Ordinance of the Town of Huntington, petitioner appeals from a "final judgment" which amended a finding made by a referee appointed to hear and report with respect to the issues, and as thus amended, confirmed and adopted the findings and conclusions of the referee, and the referee's report and decision, by which it had been found that the amendment of the zoning ordinance by respondents was a valid, legal and constitutional enactment. "Final judgment" appealed from unanimously affirmed, with $50 costs and disbursements. Although it is our opinion that the amendment of the zoning ordinance by respondents, which involved the exercise of a legislative function, may not be reviewed under the form of procedure adopted by appellant ( Matter of Neddo v. Schrade, 270 N.Y. 97; Matter of Newbrand v. City of Yonkers, 285 N.Y. 164, 174), we have determined the questions presented on the merits, in view of the acquiescence by respondents in the procedure adopted, and the request by counsel, on argument, that we ignore procedural defects. In affirming the conclusion reached at Special Term, that the enactment of the amendment to the Building Zone Ordinance is valid, legal and constitutional, we do not determine that the amendment to the ordinance is presently effective. (Cf. Town Law, § 269.) That question is not presented on this appeal.