
    Samuel Walton, Appellant, v Incorporated Town of Smithtown et al., Respondents.
    Argued September 16, 1975;
    decided October 30, 1975
    
      
      Charles T. Matthews for appellant.
    
      Howard E. Pachman for respondents.
   Memorandum. In reversing the judgment of the Supreme Court, Suffolk County, on the law and the facts, the entry of a judgment was directed declaring the pertinent zoning ordinance constitutional as applied to plaintiff’s 6.4 acres of vacant land in a R-10 residential zoning district of the Town of Smithtown. The premises were the remaining portion of a 45-acre tract, acquired in 1959 and then zoned residential, concerning which a preliminary subdivision map proposing to develop the whole parcel into 140 homesites had been submitted by plaintiff that same year to the planning department of said town.

As indicated by the Appellate Division, which cited Williams v Town of Oyster Bay (32 NY2d 78), plaintiff failed to meet his burden of proving that the subject property would not yield a reasonable return, as distinguished from the most profitable or greatest return, under the zoned use (Dauernheim, Inc. v Town Bd. of Town of Hempstead, 33 NY2d 468).

On this record, interference with the determination under review would be unjustifiable.

The order should be affirmed, with costs.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur in memorandum.

Order affirmed.  