
    Joseph A. Quartuccio, Respondent, v. Robert T. Waldbauer et al., Constituting the Board of Appeals of the Incorporated Village of Patchogue, et al., Appellants.
   In an action for a declaratory judgment, defendants appeal from a judgment of the Supreme Court, Suffolk County, entered June 27, 1972, after a nonjury trial, which (1) declared that section 93-59 of the Building Zone Ordinance of the Incorporated Village of Patchogue, Suffolk County, is unconstitutional as applied to prevent the use and occupation of plaintiff’s subject premises for ground floor business purposes and a second floor one-family apartment and (2) awarded costs to plaintiff. Judgment modified, on the law, by striking therefrom the first decretal paragraph, which declared the unconstitutionality of the ordinance section in question, and by substituting therefor a provision declaring that the use of the subject premises for ground floor business purposes and a second floor one-family apartment is a valid nonconforming use and that the right to such use has been continued and has not been abandoned. As so modified, judgment affirmed, with costs to respondent. The findings of fact below are affirmed. As noted in Special Term’s decision, “ The relief sought is a declaration of plaintiff’s right to maintain a second.floor apartment over a store ” in the subject premises and “ The action was tried on the issue of termination or abandonment of a concededly valid non-conforming use existing on the date the Ordinance was adopted or amended.” Special Term concluded, and we concur, that “the requisite intention to abandon or discontinue tile apartment use is not inferrable from the evidence at bar * * * and accordingly * ° * plaintiff is entitled to continue the apartment use”. In our opinion, the judgment should have made a declaration in plaintiff’s favor solely on this issue. We do not reach the constitutional issue. Latham, Acting P. J,, Shapiro, Gulotta, Christ and Brennan, JJ., concur.  