Matter Ralph T. Carpenter v. Milo H. Clark

Appeal by the Town Clerk of the Town of Guilderland, Albany County, from an order of the Supreme Court at Special Term, directing him to issue to the petitioner forthwith a permit for the construction of a house trailer court. An ordinance of the Town of Guilderland provides for the issuance of permits for trailer courts, and the substance of the provision pertinent here is, that upon the written application and upon the approval of the same by the Health Officer, the Town Board, and the Zoning Administrator, the Town Clerk ""shall issue a permit"". None of the three approvals prerequisite to the issuance of a permit was obtained by petitioner. The act of the Town Clerk under the ordinance is purely ministerial. He has no discretion in the matter, and if the three approvals are presented he must issue the permit. By the same token, without the three approvals he has no authority to issue the permit. The order appealed from in effect directs the Clerk to perform an act which the ordinance clearly prohibits him from doing. Thus, on the face of it, an order in the nature of mandamus was improperly granted. (2 Rathkopf, Law of Zoning and Planning, Mandamus, ch. 68; 22 Carmody-Wait, New York Practice, Mandamus, § 85 et seq.) Since the order must be reversed for this reason it is unnecessary to discuss other questions involved except that we note in passing that Special Term was without authority to pass upon the validity of the Town Board's refusal to approve petitioner's application in a proceeding in which the Town Board is not a party. Order reversed, on the law and the facts, with $10 costs, and the petition dismissed. Bergan, P.J., Coon, Herlihy, Reynolds and Taylor, JJ., concur. [ 35 Misc. 2d 733. ]