Opinion
October 30, 1950.
Present — Johnston, Acting P.J., Adel, Sneed, Wenzel and MacCrate, JJ.
In a proceeding pursuant to article 78 of the Civil Practice Act and section 267 Town of the Town Law to review a determination of the board of appeals of the town of North Salem, order confirming the determination and dismissing the petition unanimously affirmed, with $10 costs and disbursements. The approval here in question was not granted on the ground of practical difficulties or unnecessary hardships, and although no other standard has been laid down, by legislation, for the exercise of power purported to be given to the board by the zoning ordinance of the town, we may not pass upon the constitutionality of that portion of the ordinance which purports to grant such power in view of the fact that that objection was not raised at Special Term. ( Matter of Thomas v. Board of Standards Appeals of City of N.Y., 263 App. Div. 352, revd. on other grounds 290 N.Y. 109; Brous v. Town of Hempstead, 272 App. Div. 31.)