(dissenting). The respondent, Peter Goldenberg, is the owner of the premises on the westerly side of Webster avenue, about 130 feet north of East One Hundred and Ninety-fourth street and numbered from 2637 to 2645 Webster avenue, borough of The Bronx. In 1916 a one-story structure was erected thereon and has ever since been used for business for seven stores. Respondent applied to the superintendent of buildings for a permit to alter and convert the existing business building into a garage for more than five cars. His application was denied on the ground that such use is contrary to the provisions of the Building Zone Resolution.
Article 2, section 4, of the Building Zone Resolution reads as follows:
“ § 4. Business Districts, (a) In a business district no building or premises shall be used, and no building shall be erected which is arranged, intended or designed to be used, for any of .the following specified trades, industries or uses: * * *
“ (15) Garage for more than five motor vehicles, not including a warehouse where motor vehicles are received for dead storage only, and not including a salesroom where motor vehicles are kept for sale or for demonstration purposes only.”
An appeal was taken to the board of appeals and a variation asked of the application of the requirements of article 2, section 4, under the discretionary power vested in that board by section 7, subdivision (e), and section 20 of the Building Zone Resolution. When the application for such variation was made said section 20 had been revised into section 21 of the Building Zone Resolution of October 3, 1924. Twelve property owners filed affidavits against the appeal. The board denied it.
*401According to the use district map accompanying the Building Zone' Resolution adopted July 25, 1916, and revised October 3, 1924, as amended, pursuant to sections 242-a and 242-b of the Greater New York charter (Laws of 1901, chap. 466, added by Laws of 1914, chap. 470, as amd. by Laws of 1916, chap. 497; Laws of 1917, chap. 601, and Laws of 1924, chap. 295), Webster avenue and East One Hundred and Ninety-fourth street are located in a “■ business ” district. In front of the property there is an elevated structure. On the northwest corner of East One Hundred and Ninety-fourth street and Webster avenue stands a five-story apartment house without stores. North of this is the building in litigation to be altered. North of this is a 10 by 20-foot frame building used as a law office. North of this is a 100-foot front public garage. North of this and adjoining it is another 100-foot front public garage. Decatur avenue to the west is occupied mostly for residential purposes.
The owner obtained an order of certiorari, pursuant to section 719-a of the Greater New York charter (as added by Laws of 1916, chap. 503) and section 1283 et seq. of the Civil Practice Act, to review the board’s determination. At Special Term the certiorari order was sustained and the determination of the board annulled.
It seems to me that the affirmance of this order repudiates our decision in People ex rel. Werner v. Walsh (212 App. Div. 635; affd., 240 N. Y. 689). The basis of the affirmance of this order is that discrimination is shown in denying petitioner the privilege of improving his property with a garage. But there will always be a point at which this legitimate discrimination must be exercised in refusing further permits to vary the application of the Building Zone Resolution adopted'to preserve the use of property in a restricted district for business or residence uses; and whether or not such permits should be issued is committed by statute to the board of appeals. The court should not, as we have heretofore decided in the Werner case, attempt to exercise a function for which it has neither the requisite information nor the personal knowledge necessary to act for the preservation of the surrounding territory designed to be protected in the use to which the Building Zone Resolution committed it.
I, therefore, dissent and vote to reverse the order and confirm the determination of the board of appeals.
Order affirmed, with ten dollars costs and disbursements.