(dissenting). The petitioner herein, Theresa Dunne, is the owner of premises located at Nos. 2725-2731 Webster avenue, borough of The Bronx, city of New York. The property is located on the westerly side of Webster avenue, about 15Q feet south of *76East One Hundred and Ninety-seventh street, and is in a business use and “ B ” area district.
i On March 25, 1929, the superintendent of buildings denied an application which had theretofore been made to him to permit the erection and maintenance of a garage. His refusal was based on the fact that its erection was contrary to the provisions of the Building Zone Resolution, and that he had no alternative but to deny the application. The petitioner then appealed to the board of standards and appeals. The members of that board disagreed, voting three against-and two in favor of the application of the petitioner.
The board having divided three to two on the question of hardship, this became a very appropriate case for review by the Special Term of the Supreme Court and for the introduction of additional evidence on the subject of hardship.
The petitioner obtained an order of certiorari to review the decision of the board of standards and appeals. On the return of the order of certiorari at the Special Term, the court made an order referring the motion “ to the Special Term for Trials for further testimony on the question of hardship and the circumstances surrounding the application.”
After the Special Term justice had taken testimony he rendered an opinion sustaining the writ of certiorari and reversing the decision of the board of standards and appeals on the ground that the petitioner had made out a clear case of hardship and that upon the equities and the particular circumstances herein, the determination of the board of standards and appeals should be reversed and the variation of the use permitted.
The property in question is occupied by a frame dwelling which is wholly inadequate. It is 100 feet on Webster avenue and about 100 feet deep. Decatur avenue to the rear and One Hundred and Ninety-fifth street to the south, and One Hundred and Ninety-seventh street to the north, are all in the business use district.
An examination of the facts in the case compels the conclusion that 'the Special Term was correct in granting the relief requested. The petitioner contends that there was not the slightest evidence in this case to sustain the action of the board of standards and appeals and that it is very difficult to reconcile that decision with the facts as established. The remarkable feature of this controversy is that those opposed to the granting of an exception proved the necessity therefor. The proof establishes that the proposed site has in front of it the surface car tracks of the New York Central and Hudson River Railroad Company (Harlem Division), a coal and wood yard, stable occupied under a health department permit *77for six horses, and a stone yard and sheds, and that immediately in front of the premises and along Webster avenue is the three-track elevated structure of the Interborough Bapid Transit Company.
The proof further shows that there are two large one-story garages fifty feet south of One Hundred and Ninety-fifth street, and a place for the storage of cars a little over fifty-one feet north of One Hundred and Ninety-seventh street. There are a great number of vacancies in adjoining taxpayers and the stores that are occupied in the immediate vicinity are of a very poor character. It was established that to build taxpayers or an apartment house on this site would result in great loss, and that the only use available to yield a fair return is that of a garage.
The petitioner in her brief very properly emphasizes the fact that the expert opposing the application admitted both on direct examination and when questioned by the court, that an apartment house would not yield an adequate return. He testified in answer to a question put to him by the attorney for some of the intervenors, as follows: “ Q. In your answer to that question, that to-day it would not pay to put up an apartment house, on this plot, do you mean to say because of the location, or is it because of the present market conditions in real estate generally? A. Because of both.”
With such testimony in the record the court was bound to find for the petitioner.
The property owner on the east side of Webster avenue has consented to this application. The intervenors object to the erection of a garage because they own the property adjoining the petitioner’s premises on which is now located an apartment house which it was shown was of a poor character. Aside from electric lights and baths it has no improvements; was built when construction was cheap and the owners have since received an award for the taking of the easement of fight due to the erection of the elevated railroad in front of the premises.
The testimony also established that on the block where respondent’s property is located there is a theatre which is not a paying proposition, and numerous stores of the poorer class, about half of which are not occupied at present, and have not been occupied for some time past. The construction of an apartment house on this site would be a costly proposition and result in a heavy financial loss to the petitioner.
The trial justice having visited the premises by consent of the parties was in a position to see the actual conditions and to know that the only possible use for which the site was suitable was a garage. He pointed out that the apartment house being considered *78is of the old-fashioned type and that the presence of an elevated structure, coal yard, a stable, many vacant stores and a moving picture theatre, made it absolutely a case for relief under the statute. It is difficult to see what more could be shown to warrant action by a board or court.
The interveners have emphasized the fact that in the block south of where this property is located a similar application was denied, the denial of which was sustained by the Court of Appeals. (Matter of Goldenberg v. Walsh, 215 App. Div. 396; revd., 242 N. Y. 576.) There are two grounds upon which that contention may be answered: (1) In that case the elevated structure is not in front of the property involved, and (2) those opposing the application did not, in that case as in this, prove that no improvement except a garage was feasible.
The order appealed from should be affirmed.
Order reversed, with ten dollars costs and disbursements to the appellants, the certiorari proceedings dismissed and the determination of the board of standards and appeals reinstated and confirmed, with fifty dollars costs.