In Matter of Goldenberg v. Walsh (215 App. Div. 396) this court affirmed a final order sustaining the order of certiorari and annulling the proceedings and determination of the board of appeals, in an opinion by Mr. Justice Dowling, three of the justices concurring. The court said: “ Having in view the physical character of this block, its unsuitability for business purposes, the existence of a railroad right of way opposite it and an overhead elevated structure and the fact that by the prior action of the board of appeals the amount of the block devoted to garage use was increased to forty per cent of the total width of the block, I am of the opinion, as before stated, that the action of the board in denying petitioner’s application was unreasonable and discriminatory, and that the order appealed from should be affirmed.”
Mr. Justice McAvoy dissented, saying: “ It seems to me that the aflBrmance 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
The Court of Appeals reversed upon the dissenting opinion of Mr. Justice McAvoy, above quoted. (242 N. Y. 576.) This court is an intermediate appellate tribunal, and its duty is to follow the decision of the Court of Appeals, whether it agrees with it or not. Until that learned court recedes from or modifies its opinion adopting the dissenting opinion above quoted as its own, I think we are bound by it.
It seems to us that there is a precise determination that the board of appeals is vested with authority to determine finally on questions of fact involved in an application to it which is not to be reviewed by the court unless there are presented jurisdictional defects.
It follows that the order appealed from should be reversed, the order of certiorari dismissed, and the determination of the board of appeals affirmed.
Dowling and Merrell, JJ., concur; McAvoy and Wagner, JJ., dissent.