Certiorari proceeding to review a determination of the board of standards and appeals of the city of New York, which revoked a permit previously issued to the petitioner for the removal to a new location of a carousel inclosure.
Prior to May, 1938, petitioner was the owner of a parcel of land on Rockaway Parkway, borough of Brooklyn, on which it operated certain amusement devices including a carousel. The land and improvements together were assessed at $365,000. Taxes and assessments in a substantial amount were unpaid. In May, 1938, the city of New York, which was acquiring land for the Shore Parkway section of the Belt Parkway, purchased the petitioner’s land for $290,000. Petitioner retained title to the buildings and reserved the right to remove them. Petitioner thereupon leased a nearby parcel of land which was then in a business zone. On June 9, 1938, a petition was filed with the city planning commission to change the zoning of the latter property from business to residence. No further action was taken on the proposed change at that time. In August the petitioner commenced to fill and grade the new location, and the record contains an unsworn statement by counsel that $10,000 was expended for this purpose. On September twentieth petitioner made application to the borough superintendent of buildings for a permit to erect a foundation for a carousel inclosure and to remove the inclosure to the new location. Without waiting for the permit it commenced the removal of the building and was stopped by the filing of a violation on September twenty-eighth. Issuance of the permit was delayed because the structure was of frame construction and the premises were within the fire limits. On October fourteenth the permit was issued and the work proceeded. Foundation piles were driven, the structure was moved over the footings, leveled and shored up, and forms were constructed for the footings. The work was nearly completed by November tenth when all work was halted *54by the proceedings for a change of zone. Notice of the proposed change was first published on October sixth. A public hearing was held on October nineteenth, at which petitioner, by counsel, appeared in opposition. On October twenty-sixth the planning commission approved the zoning change and forwarded its resolution to the board of estimate. On November second the park department appealed to the board of standards and appeals from the ruling of the borough superintendent granting the permit. On November seventeenth the board of estimate approved the change to a residence zone, which thereupon became effective. On December thirteenth the board of standards and appeals, after a hearing held and an inspection of the premises, revoked the permit. - .
The Special Term annulled the determination under review on the theory that in purchasing the land alone at a price lower than that originally demanded for the land and improvements together the city had agreed, expressly or by implication, that the petitioner might remove the buildings to any location it chose without restriction. That theory is wholly untenable. There is no proof of any such agreement. Petitioner was not free to remove any structure to a location in which the construction or operation of such a structure was forbidden by law. The removal of' the . carousel inclosure to the new location was illegal and the issuance of the permit by the borough superintendent was improper for the reason that the premises were within the fire limits as defined by section C26-246.0 of the Administrative Code, and the construction of wood frame buildings within the fire limits is prohibited by section C26-247.0. Assuming, without deciding, that section C26-543.0 was intended to provide an exception in the case of amusement devices and other frame structures of unusual character, such exception would not be material here because the carousel inclosure was not an amusement device. It could have been used for other purposes. The petitioner was also bound by the change of zoning. It acquired no vested right unless substantial expenditures had been made or obligations incurred prior to the change. (Matter of Fox Lane Corporation v. Mann, 216 App. Div. 813; affd., 243 N. Y. 550.) The assertion that $10,000 had been expended for fill is unsupported by satisfactory proof; but in any event there is no necessary connection between the filling of the lot and its use for the special purpose described in this proceeding. As to the work done after the issuance of the permit, there is no proof of its value. While that work was being done the petitioner was aware of the impending change in the zoning ordinance. Some of the work was done after the change in zoning *55had been approved by the planning commission. (Cf. Matter of Tralow Realty Corp. v. Murdock, 261 App. Div. 173.) Under all the circumstances it cannot be inferred that the petitioner acquired a vested right.
The order, entered on reargument, adhering to the original decision which annulled the determination under review and denied appellants’ motion to dismiss the certiorari order, should be reversed on the law and the facts, with fifty dollars costs and disbursements, the motion granted, the proceeding dismissed, and the determination of the board of standards and appeals reinstated and confirmed.
The appeal from the original order should be dismissed, without costs.
Taylor, J., concurs; Hagarty, J., in opinion, concurs in result; Lazansky, P. J., and Carswell, J., concur for the dismissal of the appeal from the original order, but dissent as to the reversal of the order on reargument and vote for affirmance on the grounds that the petitioner acquired a vested right under the permit and that the structure involved is an amusement device unaffected by the Administrative Code as to fire limits. (§ C26-543.0.)