The Wilthan Realty Corporation controls by deed and lease the premises 1230-1248 Third avenue, constituting the entire block front on the westerly *33side of Third avenue between Seventy-first and Seventy-second streets, as well as the premises 182-184 East Seventy-second street, and 183-187 East Seventy-first street, the whole constituting a plot extending westerly from Third avenue, 130 feet on Seventy-second street, and 133.4 feet on Seventy-first street.
On July 17, 1928, the board of standards and appeals granted its application to erect a theatre of fireproof construction on this plot, the proposed building to have a frontage of 204 feet 4 inches on the avenue, with a depth of 125 feet on Seventy-second street and 119 feet 8 inches on Seventy-first street. Under the Building Zone Resolution the property abutting on Third avenue and for 100 feet westerly on the side streets is within the business district; so that, a portion of the building to the extent of 25 feet on Seventy-second street and 19 feet 8 inches on Seventy-first street would be located in the residence district. A court or areaway is to separate the proposed structure from the buildings to the west.
After a public hearing, the application of the intervenor, respondent, for a variation so as to permit the erection of this building was granted by the board of standards and appeals under the authority conferred by subdivision c of section 7 of the Building Zone Resolution.
Thereupon the petitioner sued out an order of certiorari under section 1290 of the Civil Practice Act and section 719-a of the Greater New York Charter to review the determination of the board, the petitioner and other applicants being property owners in the adjacent residence district. That order of certiorari was dismissed at Special Term upon a motion to quash, and this appeal reviews the order dismissing the certiorari order.
Appellants contend that an issue arises upon the petition and the return, so that the motion to quash the certiorari order was. erroneous^. granted. The return here, however, sets forth all the evidence and proceedings before the board and states the reasons for its action. “ The return must be taken as conclusive and acted on as true.” (People ex rel. Lester v. Eno, 176 N. Y. 513, 518; also People ex rel. Miller v. Wurster, 149 id. 549, 554.)
Thus there was before the Special Term a complete record upon which to review the action of the board; the allegations of the petition raise no real issue. The court was justified in considering and determining the matter upon the merits.
The power of the board of standards and appeals to grant this application is questioned because during the preceding year it *34had denied an application for a like variation upon the same premises. That contention would be upheld, were it not for the fact that the record before us discloses a great variety of important changes in the plan of the proposed structure as compared with the earlier plans, among which are the elimination of stores upon both street frontages in the residence district, the reduction in the area of the residence district to be built on, changes in exits, the adaption of the architecture of the building to conform to that prevailing in the residence district, and many other details of greater or less importance, all tending to safeguard the character of the more restricted district. These changes and the differences between the plans presented suffice to permit the board to pass upon this application, with power to determine it unimpaired by the prior decision made upon the earlier application. (Matter of Riverside St. Clair Corp. v. Walsh, 225 App. Div. 655; Matter of Vesell v. Walsh, Id. 742; Matter of Hall v. Walsh, 221 id. 756.)
There remains the important question: Whether or not under subdivision c of section 7 of the Building Zone Resolution, the board of standards and appeals was vested with power to change the use of the strip of land in question so that the theatre building might project into the residence district. That section of the Building Zone Resolution expressly grants to the board power in appropriate cases, after public notice and hearing, to permit the extension of the contemplated use. into the residence district, provided such conditions are attached as adequately safeguard the character of that district so that the variance of the use district regulations shall be in harmony with the general purpose and intent of the Building Zone Resolution. The grant of power, under such circumstances, is to “(c) Permit the extension of an existing or proposed building into a more restricted district under such conditions as will safeguard the character of the more restricted district.”
The question accordingly is whether the building to be erected upon the strip of land in the residence district to the west of the larger area in the business district will constitute such an invasion of the residence district that it should be held unjustified, as a matter of law.
In People ex rel. Fordham M. R. Church v. Walsh (244 N. Y. 280, 289) the court mentions that previous decisions of the courts “ have conceded a wide scope to the discretion of the board.” In People ex rel. Sheldon v. Board of Appeals (234 N. Y. 484) it was held that the power to make variances from the zoning regulations (p. 494) was “ delegated to the board of appeals directly by the Legislature and by the board of estimate and apportionment pursuant to legislative authority.” The determination of the *35board there sustained permitted the erection of a business building upon a plot of land, a large part of which was within a residence district as fixed by the zoning resolution, the reason assigned being the change in use of property in the immediate vicinity. The exercise of the power of the board to permit variations of the zoning regulations has likewise been sustained in People ex rel. Helvetia Realty Co. v. Leo (231 N. Y. 619) and in People ex rel. Facey v. Leo (230 id. 602).
Nor must subdivision c of section 7 be read as limited by section 21 of the Building Zone Resolution. The power under subdivision c of section 7 is to determine and vary the application of the use district regulations by permitting the extension of an existing or proposed building into a more restricted district. Section 21 (formerly section 20) deals with the right to vary the provisions of the resolution itself. This is pointed out in People ex rel. Sheldon v. Board of Appeals (supra, p. 494): “ The board of estimate and apportionment pursuant to chapter 601, Laws of 1917, amended the regulations of the zone resolution by conferring upon the board of appeals power in appropriate cases and subject to appropriate conditions and safeguards to determine and vary the application of the use district regulations in harmony with their general intent and purpose (Section 7) also, where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the provisions of this resolution, in a specific case, to vary any such provision in harmony with its general purpose and intent that substantial justice may be done. (Article 5, section 20.) No question can arise as to the authority of the board of estimate and apportionment to thus amend the zone resolution regulations. The authority conferred by section 7 upon the board of appeals was to ‘ determine and vary ’ the use district regulations. By section 20 to ‘ vary ’ any provision of the resolution in a specific case, where substantial justice will result therefrom. The words ‘ determine and vary ’ as used in the statute and the amended zone resolution must receive a reasonable construction.”
Determinations made pursuant to subdivision c of section 7 are not to be confused with applications granted under section 21.
In Matter of Stillman v. Board of Standards & Appeals (222 App. Div. 19; affd., 247 N. Y. 599) the court annulled a determination which granted an application made under section 21, the effect of which was to change a substantial area from a residence to a business district without proof of practical difficulty or hardship or that the public health, safety and general welfare were advantaged thereby. The situation there was totally different from the present.
*36If the narrow strip located westerly of the business district be not included in the plot to be improved, a theatre of smaller capacity and of a construction less artistic and less in harmony with the architecture of the buildings in the contiguous residence area could and probably will be erected on the area within the business district. The conditions imposed by the board adequately safeguard the character of the residence district, as required by the Building Zone Resolution. The plans which are presented and have been sanctioned by the board relieve the two streets within the residence area, as far as reasonably may be done, from a use which interferes to any considerable extent with the residence district as established by the Building Zone Resolution. Where a projected improvement does no real harm to the district and, as here, the granting of the variation in the use is not in conflict with the general purpose and intent of the Building Zone Resolution, the board’s determination in that regard should not be annulled. Even if the merits of the proposal be held to be debatable, where the conclusion reached in good faith is not clearly at variance with the Building Zone Resolution or with the purpose of the Building Zone Resolution; the action of the board must be sustained. That board is invested with the power under the language of the Building Zone Resolution to declare an exception in the public interest. Every case, of course, must turn upon its particular facts. The extension of the business district into the residence district here is. comparatively slight. No unjustifiable invasion of the residence district will be sanctioned. But the power of the board to determine and vary the use district regulations exists; and no abuse in its exercise having been here established, the order appealed from should be affirmed, with ten dollars costs and disbursements.