(dissenting). I dissent and vote to reverse on the law and the facts the final order appealed from, to annul the determination of the board of standards and appeals, and to deny the application for a variance. I agree with the majority that respondent Bay Parkway Holding Corporation was not entitled to the relief awarded to it by the board, which acted only in pursuance of section 21 of article V of the Amended Building Zone Resolution under which said respondent’s predecessor in title instituted before it this proceeding. Subsequently to the board’s determination under review, a new subdivision (f) of section 7 was enacted. The board has determined no proceeding instituted thereunder. The majority ruling accomplishes the affirmance of the final order made at Special Term confirming that determination of the board, upon a theory foreign to applicant’s pleading before that body. “ Pleadings and a distinct issue are essential in every system of jurisprudence, and there can be no orderly administration of justice without them.” (Earl, J., in Southwick v. First Nat. Bank of Memphis, 84 N. Y. 420, at p. 429.) The appellants have had no day in court upon an application made upon allegations showing a claimed right to relief under subdivision (f) of section 7. Relief must be awarded secundum allegata et probata. (Walrath v. Hanover Fire Ins. Co., 216 N. Y. 220, 225.) Numerous later authorities follow the Walrath case. One may not sue upon a given theory and have a favorable determination, not warranted in pursuance thereof, sustained on another theory, foreign to the allegations, of his pleadings. (Cases supra.) This court should pass upon the record as it finds it. It presents only a proceeding under section 21. The function of the Special Term and of this court is purely one of review upon the present record. (People ex rel. Hudson-Harlem Co. v. Walker, 282 N. Y. 400, 404. Cf. Matter of Tralow Realty Corp. v. Murdock, 261 App. Div. 173, 177, 178.) If respondent Bay Parkway Holding Corporation desires relief upon facts claimed to justify it under subdivision (f) of section 7, it should plead them in an appropriate application to the board.
In their brief, the appellants question the constitutionality of subdivision (f) of section 7. That question, which I regard as debatable, should not be decided herein. In a new proceeding, if instituted, the appellants may make timely protest on that ground in order to avoid possible waiver on their part; and they may offer the additional proofs which, in their brief they state they will then present. They have made objection on the constitutional ground here, although not at Special Term when respondent Bay Parkway Holding Corporation, seeking confirmation of the board’s determination, injected subdivision (f) of section 7 into the *365proceeding, in which, in my opinion, it had no proper place. There has been no waiver.
Boardwalk & Seashore Corp. v. Murdock (286 N. Y. 494) and People ex rel. Smith v. Walsh (211 App. Div. 205; affd., 240 N. Y. 606) and kindred cases, when each is considered in the light of its peculiar facts, are not in conflict with my views above expressed. None, in my opinion, presents the exact situation legally which the subsequent enactment of subdivision (f) of section 7 brings into this case, or justifies a conclusion for affirmance on this record.
Order affirmed, without costs.