Judgment dismissing the complaint should be affirmed. Defendants were entitled to the dismissal both under rule 112 and rule 113 of the Buies of Civil Practice because plaintiffs failed to exhaust the available administrative remedies before proceeding in this action for an injunction.
The essential facts are fully stated in the majority opinion. In essence, plaintiffs are suing to enjoin the defendants from erecting a building upon lots adjoining those of plaintiffs on *96the ground that such new building would violate height restrictions of subdivision (f) of section 8 and subdivision (d) of section 9 of the Zoning Resolution of the City of New York.
In September, 1959, the Buildings Department approved an amended application together with the plans and specifications for the proposed new building, and issued a permit on December 3, 1959. During the pendency of the application, and after the permit had been granted, plaintiffs and their predecessors intervened with the Buildings Department urging the denial or cancellation of the permit by reason of the alleged violation of sections of the Zoning Resolution; but their objections were overruled.
Under section 643 of the New York City Charter the Department of Housing and Buildings is given jurisdiction to enforce laws and regulations governing, among other things, the construction and alteration of buildings and structures in the city, and to issue permits in reference thereto. Section 645 gives exclusive power to the Commissioner of Buildings to approve and disapprove plans for construction or alteration, and to require that they be in accordance with law. It further provides specifically that such power “ shall not be subject to review, except by the board of standards and appeals as provided by law ”.
Appeals may be taken from decisions of the Commissioner of Buildings and Borough Superintendent to the Board of Standards and Appeals (New York City Charter, § 648) which can review the determinations and reverse or affirm, in whole or .in part, and ‘ ‘ make such order, requirement, decision or determination as in its opinion ought to be made in the premises ” (§ 666, subd. 6). In passing upon appeals, the board may grant a variance “where there are practical difficulties or unnecessary hardship in the way of carrying out the strict letter of the law, so that the spirit of the law shall be observed, public safety secured and substantial justice done” (§ 666, subd. 7).
Under section 668 of the Charter, an appeal may be taken to the Board of Standards and .Appeals “by any person aggrieved ” and an appeal stays all proceedings in furtherance of the action appealed from.
The decisions of the board may be reviewed by certiorari to the Supreme Court by “ any person or persons, jointly or severally aggrieved ” (Administrative Code of City of New York, § 668e-1.0).
In People ex rel. Broadway & 96th St. Really Co. v. Walsh, 203 App. Div. 468, the court (per Dowling, J.) said (p. 474):
*97“ The procedure of appeal within the line of administrative officials before allowing recourse to the courts, insures the benefit of trained and competent expert opinion and judgment, applied to the facts of each particular case by an experienced tribunal, which is not limited to an affirmance or reversal of the action of the superintendent of buildings, but may use its judgment in making such modification in his action as in its opinion should be made, and to that end is vested with his powers, in order that the spirit of the law shall be observed, public safety secured and substantial justice done. ’ ’
The court then held that petitioner’s failure to exhaust its remedy by appeal to the Board of Appeals prevented it from applying to the court for relief by way of mandamus to compel the Superintendent of Buildings to revoke a permit.
The same conclusion was reached in Matter of Towers Management Corp. v. Thatcher (271 N. Y. 94) which cited, and quoted with approval from the Walsh case (supra).
There is no claim here that plaintiffs were not accorded ample opportunity to appeal to the Board of Standards and Appeals as aggrieved parties, or that such an appeal would be futile, or that the Zoning Ordinance is not applicable to the situation.
Unquestionably, the Legislature has vested in the Board of Standards and Appeals the exclusive power to determine from an expert viewpoint the manifold questions involved in the construction and alteration of buildings in New York City and in tire enforcement of the Zoning Resolution. Sufficient safeguards are provided for appropriate review procedure by the courts in a certiorari proceeding to afford judicial protection against any illegal or arbitrary action on the part of the board. At the same time, the board can from an expert viewpoint grant a variance where a practical difficulty or unnecessary hardship results from carrying out the strict letter of the law.
In effect, what plaintiffs are attempting to accomplish in this suit is to substitute the court for the Board of Standards and Appeals as the tribunal to hear and determine issues which.the Charter declared to be within the exclusive jurisdiction of the board in the first instance. The facts herein demonstrate the soundness and advisability of having the board determine initially whether there is a violation of the Zoning Resolution. What is more, had the plaintiffs appealed to the board, the defendants could have petitioned for a variance in the event of an adverse determination.
The procedure plaintiffs should have followed is that outlined in Matter of Kaltenbach v. Board of Stds. & Appeals (274 N. Y. 34) where a plaintiff, circumstanced as the plaintiffs herein,— *98a property owner in the vicinity'—applied to have permits for the erection of an office building and garage revoked on the ground that the erection would violate the Zoning Ordinance.
Confusion has arisen in the application of the rule of exhausting administrative remedies in zoning cases because of failure to distinguish the different types of relief sought. Thus, the eases cited by the majority to the effect that an action, for an injunction is an appropriate remedy of an aggrieved property owner who seeks to bar the erection of a structure on adjoining or nearby premises in violation of the Zoning Ordinance have only a superficial relevance.
In Marcus v. Village of Mamaroneck (283 N. Y. 325) the Zoning Ordinance provided for the issuance of “ certificates of compliance and occupancy ” by the Building Inspector—where there was an alteration—stating that the building and premises complied with the provisions of the regulations. Alterations were made without getting a certificate of occupancy. This, the court held, was a violation of the Zoning Ordinance. Hence the ease did not involve any question for an expert board but one of law dealing with compliance with the procedural aspects of the statute. That question could be determined by a court as well as by a board of standards and appeals. It was a matter of compliance with conditions precedent to making alterations and not the failure of the alterations to comply with the Zoning Ordinance.
Rice v. Van Vranken (132 Misc. 82, affd. 225 App. Div. 179, affd. 255 N. Y. 541) is readily distinguishable. There the action was by plaintiffs who occupied residences adjacent to, and in the immediate vicinity of defendant’s property, to enjoin defendant from erecting an apartment house. The theory of the action was that a Zoning Ordinance was violated which became effective after the issuance of a permit for the construction of the apartment house but before any work had been commenced on the building. It was clear that the building of the apartment house violated the later-enacted Zoning Ordinance. The real question was one of law—was the Ordinance retroactively effective to reach a proper permit theretofore granted?
In Roock v. Womer (233 App. Div. 566) —-which at first blush looks like the instant case—plaintiffs, who owned houses nearby, sued to enjoin the building of a structure which did not comply with the “ set-back ” provisions of the Zoning Ordinance of the City of Syracuse. Defendant had obtained a permit. But as the court said (pp. 566-567): “ The permit was not put in evidence, and we have no definite information as to whether or not it authorized a construction in violation of the ordinance. *99Therefore, we infer that the claim of plaintiffs — as it reached the court at nonsuit time—was that the building had been constructed under an unlawful permit or in violation of both a valid permit and the ordinance.”
In the instant case no such assumptions can be made. The permit was lawful and the building was being constructed in accordance with the permit. Moreover, in Roach there is no indication that plaintiffs were aware of, and participated in the permit obtaining procedure so that they could be aggrieved parties to an appropriate appeal to a board.
In Bailer v. Ringe (255 App, Div, 976) the action was to enjoin the use of premises for a funeral chapel or undertaking business, There a city permit was denied to defendants. Since the permit had been refused, there was no administrative remedy plaintiff could exhaust, and an action was the sole remedy to pursue. So, too, in Kaltenbach v. Benisch (252 App. Div. 788) no permit had been issued or was involved. Moreover, the complaint contained, in addition, a cause of action for unfair competition.
Finally, Daub v. Popkin (9 Misc 2d 362, mod. 5 A D 2d 283, affd, 4 N Y 2d 1024) was an action by lessees of an apartment house to restrain an interference with their contract rights as lessees in the course of converting the building into a commercial use. In addition to a violation of a section of the Zoning Resolution, the lessees complained of a whole series of actions allegedly violating the tenants’ rights to undisturbed possession. The permit did not violate the Zoning Resolution and hence no administrative remedy by appeal to the Board of Standards and Appeals would have changed that fact. But no permit, even if properly issued, could override or disregard the lessees’ contract rights. Hence, relief could only be obtained from a court in the first instance.
The doctrine announced in People ex rel. Broadway & 96th St. Realty Co. v. Walsh (203 App. Div. 468, supra) as to the necessity for exhaustion of administrative remedies before applying to the courts for relief, is firmly rooted in our jurisprudence. Particularly when the issue tendered is one within the specialization of a body such as the Board of Standards and Appeals, and when the remedy afforded by such a board can provide relief in the same measure as a court, will the courts require exhaustion of the administrative remedy. (See 3 Davis, Administrative Law, § 20.01 et seep; 1 Metzenbaum, Law of Zoning [2d ed.], ch. IX-e; Ann. 136 A. L. R. 1378-1398.)
Where the constitutionality of a zoning ordinance is challenged (Baddour v. City of Long Beach, 270 N. Y. 167, appeal *100dismissed 308 U. S. 503); or the zoning ordinance is assailed as unreasonable and beyond the power of the city or village (Dowsey v. Village of Kensington, 257 N. Y. 221), resort to the statutory remedy of appeal to the appropriate board of standards and appeals is unnecessary before seeking relief in the courts. Such suits present problems which do not require any specialized knowledge of zoning but involve questions usually passed upon by courts.
However, where, as herein, the questions are, among others, whether the height of a tower complies with the Zoning Resolution, whether it is to be considered as part of an existing structure or a separate structure, and whether the rear yard requirements of the resolution should be applied to the proposed structure, it becomes apparent that we have a classic example of the necessity for a review by experts rather than by a court.
Since plaintiffs did not pursue the remedy afforded them by appeal to the Board of Standards and Appeals, Special Term was correct in dismissing the complaint on a motion for judgment on the pleadings pursuant to rule 112 of the Rules of Civil Practice. However, based on the affidavits submitted, the dismissal of the complaint was also warranted under the motion made pursuant to rule 113.
I therefore dissent and would affirm the dismissal of the complaint.
Breitel, J. P., and Rabin, J., concur with Eager, J. • Valente, J., dissents and votes to affirm in opinion in which Stevens, J., concurs.
Order, entered on September 7, 1960, granting defendants’ motion for judgment on the pleadings, dismissing the complaint, and denying the plaintiffs’ cross motion for summary judgment, modified, on the law and on the facts, with $20 costs and disbursements to the appellants, to delete the first and third ordering paragraphs and to provide that the defendants’ motion is in all respects denied, with $10 costs.