he received orders which he filed with the defendant, particularly during the months of February, March, and April, 1916, taking note of the fact that he was selling to wholesale molasses dealers, competitors of the defendant, that he was selling in carload lots to those with whom he had not theretofore dealt and concerning whose business the sales manager, Mr. Welch, who conducted all of these transactions, was not familiar, having in mind that he was publishing and sending broadcast hundreds of printed notices that he was selling molasses, at a time when there was an extraordinary demand for it from an unexpected source, at 6 or 7 cents less than the market value, all points in the direction of an effort on the part of the plaintiff to use the contract for a purpose certainly not within the contemplation of the parties, and for such a purpose as would safely be characterized as speculating in a rising market.

As an evidence that such a condition or demand could not obtain within the contemplation of the plaintiff, at least, is the letter from the plaintiff to Naisawald, asking for a price for that year's supply of molasses, and stating that his requirements would be about 1,000 barrels for the year.

The counsel for the plaintiff upon final submission says: The sole prohibition of the courts in considering the limit beyond which a vendee under such a contract may not go, in exceeding the amount of business done under a previous and similar contract, is against any extraordinary endeavor to drive in business, so as to enable the vendee to take an unfair advantage of such an open contract, and the burden rests upon the defendant to show that the plaintiff did something unusual and extraordinary, amounting to what the courts have defined as a "special drive" in order to justify a breach of contract. It seems from the record that the plaintiff had made a "special drive," and stood ready to sell the goods which came to him from orders through the drive at certainly an extraordinary price.

The plaintiff contends that the evidence shows that there was an extraordinary demand for molasses on the part of farmers, owing to the high cost of hay and the relatively low cost of oat straw, which latter product could be fed to stock mixed with molasses, and that such condition existed from the fall of 1915 through the winter of 1916, and caused the unusual demand aforesaid. That does not explain why the plaintiff stood ready to sell upon demand several hundreds of barrels of molasses to wholesale molasses dealers, elevator companies, and others, at 6 or 7 cents a gallon less than its real market value.

What we have written, which is altogether too long, indicates the court's conclusion with reference to the relation between the parties in the executing of the contract. The defendant made a breach of the contract, and if the plaintiff was damaged thereby is liable therefor.

We may consider, in computing the damages, the solicitation made by the plaintiff of unusual lines of trade, and the items of so-called orders, unfilled by the defendant, upon which the plaintiff claims a recovery for damage sustained. The result of such examination leads us to strike out from consideration, in awarding damages, the following items, namely:

One thousand eight hundred barrels, at 55 gallons each barrel, equals 99,000 gallons.

Damages at 10 cents each gallon......
Amount claimed by plaintiff as damages.
From which there is to be deducted..

Leaving the damages awarded in favor of plaintiff against the defendant

$ 9,900.00 15,251.00

9,900.00

.$ 5,351.00

Findings may be made in accordance herewith, and judgment upon such findings may be red in favor of the plaintiff as against the defendant for $5,351, interest and costs.

WEST SIDE MORTGAGE CO. OF NEW YORK v. LEO et al., Board of

Appeals.

(Supreme Court, Special Term, New York County. February 19, 1919.) 1. CERTIORARI 56(1)—MATTERS REVIEWABLE.

On certiorari to review decision of the board of appeals of city of New York, granting permission to erect a building under Greater New York Charter, § 719a, which was added by Laws 1916, c. 503, facts set forth in return must be accepted as true, and court cannot consider facts stated in petition and accompanying papers, except such facts as to which an admission, or what is equivalent to an admission, is contained in return.

2. MUNICIPAL CORPORATIONS 192-BOARD OF APPEALS DISPOSITION OF APPEAL.

Under Greater New York Charter, § 719, subd. 5, as added by Laws 1916, c. 503, board of appeals has no power to grant or deny an appeal, but only to reverse or affirm, or modify determination below, and make such order, requirement, decision, or determination as in its opinion ought to be made.

3. MUNICIPAL CORPORATIONS 621-BUILDINGS-PERMIT-ORDER OF BOARD OF APPEALS.

On appeal to the New York City board of appeals from order of superintendent of buildings in rejecting plans for erection of building to be used partly as a garage and partly as a stable, resolution of board held only to grant a right to construct a garage.

4. CERTIORARI 57-MATTERS REVIEWABLE.

On certiorari to review action of board of appeals of city of New York, on appeal from decision of superintendent of buildings, rejecting plan for construction of combined garage and stable, where board granted right to construct a garage and said nothing as to a stable, court cannot consider any question concerning erection of a stable, regardless of Greater New York Charter, § 719a, subd. 4, as added by Laws 1916, c. 503, relating to taking of testimony.

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

5. MUNICIPAL CORPORATIONS 594(1)-BUILDINGS-BOARD OF STANDARDS AND APPEALS.

A building zone resolution adopted by the board of estimate and apportionment, under authority conferred by Greater New York Charter, § 242b, as amended by Laws 1917, c. 601, has the force of a statute.

6. MUNICIPAL CORPORATIONS

PEALS.

621-BUILDINGS-PERMIT-BOARD OF AP

On appeal to board of appeals of city of New York from decision of superintendent of buildings rejecting plan for building, board properly disposed of matter on law as it existed at time appeal was heard. 7. MUNICIPAL CORPORATIONS 192-BOARD OF APPEALS-POWERS-RULES. The board of appeals of city of New York had no power to make rules governing operation of building zone resolution until enactment of Laws 1917, c. 601, by which Greater New York Charter, § 242b, was amended, and had no power to make a rule requiring an appeal from a decision of superintendent of buildings in rejecting a plan for a proposed new building to be made within any certain time.

8. MUNICIPAL CORPORATIONS

FOR APPEAL.

621-BOARD OF APPEALS-BUILDINGS-TIME

Where no objection that appeal was not taken in time was made at time an appeal was brought before board of appeals of city of New York from decision of superintendent of buildings, rejecting plan for building, such objection was waived.

9. MUNICIPAL CORPORATIONS 192-BOARD OF APPEALS.

The board of appeals of city of New York is administrative rather than judicial, and rules of practice should not be rigidly applied.

In the matter of the application of the West Side Mortgage Company of New York for a writ of certiorari against John P. Leo and others, constituting the Board of Appeals in the City of New York, to review a decision granting permission to erect a garage. Determination of board affirmed.

Almy, Van Gordon & Evans, of New York City (William S. Evans, of New York City, of counsel), for petitioner.

William P. Burr, Corp. Counsel, of New York City (Joseph I. Berry and William T. Kennedy, both of New York City, of counsel), for board of appeals.

Philip J. Sinnott, of New York City, for intervener.

GIEGERICH, J. This proceeding was instituted by the relator to review the decision of the board of appeals under section 719a of the Greater New York Charter (Laws 1901, c. 466), which was added by chapter 503 of the Laws of 1916. On August 6, 1917, Burns Bros., a domestic corporation, through its architect, filed with the superintendent of buildings plans for the erection of a new building, to be used partly as a garage and partly as a stable, on the premises Nos. 323 and 325 West Ninety-Sixth street, in the borough of Manhattan, which is located near the premises of the petitioner. Such plan was rejected on August 18, 1917, upon the ground that the proposed building would be in violation of section 4 of the building zone resolution, which prohibits the erection of garages and stables for use by more than five motor vehicles or five horses in a business district, subject, however, to the exceptions contained in section 7 of said resolution.

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

The premises in question are located in a "business district" as established by the zone resolution adopted by the board of estimate and apportionment of the city of New York on July 28, 1916, by virtue of chapter 497 of the Laws of 1916. An appeal was taken by the intervener from the decision of the superintendent of buildings to the board of appeals, but was subsequently withdrawn from the consideration. of the board. Such appeal, however, was thereafter revived, reinstated, and restored to the calendar of the said board for a hearing to be held by it on May 14, 1918. This course seems to have been permitted under the practice of the board as it existed prior to the adoption of the present rules in August, 1918, by which provision is made for withdrawals.

It appears from the record of proceedings annexed to the return. that notice of such hearing was served upon all interested parties, including the relator; that a public hearing was held before the board on the said 14th day of May, 1918; and that the relator, among others, appeared and was heard in opposition to the granting of the appeal. No objection was made that the board acted beyond its power in placing the case on the calendar for a full hearing on that date. On May 14, 1918, the board of appeals rendered a decision in the form. of a resolution, which is hereinafter set forth. The petitioner thereupon obtained a writ of certiorari to review such decision, and, by order of the court subsequently made, Burns Bros. were permitted to intervene in the proceeding. The allegations of the petition are based upon the theory that the resolution of the board of appeals gives to the intervener the right to erect a stable, as well as a garage upon the property in question. I do not think that the resolution, when considered in the light of the circumstances attending the hearing and disposition of the appeal, is susceptible of such a construction.

The petition alleges that on May 14, 1918, when the matter of the appeal from the decision of the superintendent of buildings again came on before the board of appeals for a hearing, "the board of appeals reversed the decision of the superintendent of buildings of the city of New York and thus permitted the erection of the garage and stable near the premises of your petitioner." The respective.returns of the board and intervener contain no admission of such allegation, but, on the contrary, both deny each and every allegation of the petition inconsistent with the transcript of the record as filed with the return of the board. It may therefore be taken that the allegation in question is denied by such returns. Annexed to the return of the board and forming part thereof are sworn copies of the notice of appeal, the decision appealed from, the notices of hearing, plans and photographs and all other papers acted upon by the board of appeals in connection therewith, the minutes of the proceedings of the board of appeals upon said appeal and the decision of the board of appeals thereon, and such other records and papers as are called for by the writ of certiorari.

[1] In this connection it may be observed that the petition neither sets forth the decision nor is there a copy thereof annexed. No evidence was offered upon the trial that the board rendered any other

decision than the one annexed to its return. Furthermore, the rule is well established that the facts set forth in the return must be accepted as true and are conclusive, and that the court is not at liberty to look behind the return to consider facts stated in the petition and accompanying papers except such facts as to which an admission, or what is equivalent to an admission, is contained in the return. People ex rel. Bernstein v. La Fetra, 171 App. Div. 269, 270, 157 N. Y. Supp. 386, and cases cited; 4 Encyc. Pl. & Pr. 224.

[2, 3] Coming now to a consideration of the question upon the facts set forth in the return, it will be seen from the minutes of the meeting of the board at which the resolution was adopted that the attorney for the intervener appeared in relation to the appeal, under the building zone resolution, from the determination refusing to permit the erection of a public garage in a business district upon the premises in question, and, after stating the names of the persons who appeared in opposition to the granting of the appeal, such minutes further show that the resolution granting the appeal was adopted by the unanimous vote of all the members then present. The resolution so adopted reads as follows:

"Whereas Philip J. Sinnott, attorney, on behalf of Burns Bros. Coal Company, owner, filed April 30, 1918, with the board of appeals an appeal, under the building zone resolution, to permit the erection of a garage, premises Nos. 323-325 West Ninety-Sixth street, Manhattan; and whereas, a public hear ing was held on this appeal by the board of appeals at the regular meeting May 14, 1918, after due notice by publication in the bulletin of the board of standards and appeals; and whereas, the use district maps accompanying the building zone resolution show that Ninety-Sixth street, between West End avenue and Riverside Drive, is a business district, and whereas, it appears that the proposed garage will be four stories high, of fireproof construction. with a frontage of 50 feet and a depth of 90 feet; that there is a large garage adjoining the premises to the east and a second large garage approximately 25 feet to the west: Resolved, that the appeal be, and it hereby is, granted, on condition that any necessary permits for the prosecution of the work shall be obtained within nine months of the date of this action and that the building shall be completed within eighteen months of the date of this action."

Subdivision 5 of section 719 of the charter, as added by chapter 503 of the Laws of 1916, among other things provides that the"board of appeals may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from and shall make such order, requirement, decision or determination as in its opinion ought to be made in the premises, and to that end shall have all the powers of the officer from whom the appeal is taken. The decision shall be in writing and shall be filed in the office of the board and promptly published in the bulletin of the board. Each decision shall so far as is practicable be in the form of a general statement or resolution which shall be applicable to cases similar to or falling within the principles passed upon in such decision."

In People ex rel. N. Y. C. R. R. v. Leo, 105 Misc. Rep. 372, 173 N. Y. Supp. 217, I pointed out the defect in the practice of the board of appeals in not taking a vote of the members upon a proposition to affirm or to reverse or to modify, its procedure being merely to grant or dismiss the appeal. As stated in the course of the opinion in that

case: