In a proceeding under article *78 of the Civil Practice Act, brought to review a determination of the board of zoning appeals of the town of Hemp-stead, denying petitioner’s application for a building permit to reconstruct or repair a building partially destroyed by fire, proceeding dismissed on the merits, with fifty dollars costs and disbursements. The provision of section 1209 of the Building Zone Ordinance, in effect providing that a non-conforming building which has been damaged by fire to the extent of more than seventy-five per cent of its value shall not be repaired or rebuilt except for a conforming use, is valid and constitutional. The determination that petitioner’s building had been damaged to the extent specified in the ordinance was not against the weight of the evidence within section 1296, subdivision 7, of the Civil Practice Act. Lazansky, P. J., Carswell, Adel, Taylor and Close, JJ., concur.