
    In the Matter of Joseph Gray, Petitioner, against George Maislen et al., Constituting the Board of Appeals of the Incorporated Village of Freeport, Respondents.
    Supreme Court, Special Term, Nassau County,
    April 13, 1954.
    
      Sanford A. Davison for petitioner.
    
      Lester H. Baumann for respondents.
   Percy Stoddart, J.

This is a proceeding pursuant to article 78 of the Civil Practice Act in which an order is sought annulling a determination of an “ alleged” Board of Appeals of the Incorporated Village of Freeport.

Section 175 of the Village Law provides that the board of trustees of a village may enact zoning ordinances and may appoint a board of appeals to determine or vary the application of such ordinances. Under section 179-b it is provided in part: 1 ‘ Such board of trustees shall provide for the appointment of a board of appeals consisting of three or five members, each to be appointed for three years. The board of trustees shall have the power to remove any member of the board for cause and after public hearing. Vacancies shall be filled for the unexpired term of the member whose place has become vacant.” (Italics supplied.) The Board of Trustees of the Incorporated Village of Freeport in section 15 of chapter 10 of the Unified Code of Ordinances provided for a Board of Appeals of five members.

It appears that at the time of the hearing on the petitioner’s application to review a denial of a permit by the Superintendent of Buildings, a vacancy existed on the Board of Appeals. The petitioner requested an adjournment on the ground that there was no Board of Appeals in existence. His request was denied and the hearing proceeded without any further participation in it by him.

Although section 179-b provides that the concurring vote of a majority of the board is sufficient to make a determination, and section 41 of the General Construction Law states that the majority of the “ whole number ” of a board shall constitute a quorum, neither section upholds the respondents’ contention that three members may act when only four members have been appointed. As the statute provides for a five-member board, there must be five appointed even though all need not be present to conduct a meeting.

In view of the foregoing, I consider it unnecessary to pass upon the other questions involved. The determination will be annulled and the matter returned to a lawfully constituted Board of Appeals for another hearing.

Settle order on notice.  