The object of this proceeding pursuant to article 78 of the CPLR was to have it declared that the petitioner’s property, at the southwest corner of Prospect Street and Central Avenue in the Village of Cedarhurst, had an established, lawful nonconforming use and that it could continue to be operated as an auto body repair and paint shop.
It is undisputed that for many years prior to 1950 the petitioner’s predecessor in title operated a gasoline service and filling station at the premises, in conformity with the January, 1941 ordinance which had permitted such use. By virtue of an amendment adopted on July 28, 1950 a gasoline filling and service station at that location thereafter became a nonconforming use. In 1954 an addition to the existing building, containing three bays, was constructed. Bay No. 1 adjoined the gasoline station. Bays Nos. 2 and 3 extended to the west. There was a building permit issued for this work. Bay No. 1 was used in connection with, the gasoline service business and the other two were rented in or about 1955 as an auto body repair and paint shop and they have been so operated ever since.
*44In 1957, after these new businesses had been in operation for almost three years, ¡the ordinance was again amended in such a way as to enumerate the permitted uses rather than to list the forbidden ones. The petitioner’s use was not listed. Thus, an auto body and paint shop became a prohibited use at this location for the first time. This is substantiated by the decision of the Board of Trustees, in its finding 13 which reads in part as follows“In November 1957 the Cedarhurst Ordinances were amended so as to prohibit auto body repair and paint shops in the Village of Cedarhurst.
“ This Board of Trustees, by the vote hereafter indicated, concludes that in July 1950 the pertinent ordinance Avas enacted prohibiting automobile filling and or automobile service stations having a frontage or property line on Central Avenue in Cedarhurst; that the subject premises had and has a frontage and property line on Central Avenue; and that the new addition erected in 1954 or 1955 was intended to be and was in fact an enlargement and extension of the then existing gas station.”
Further, the appellants’ brief (p. 9) states:
“ It is important to note that on June 5,1957 the Village Ordinance, section 18-154, listing permitted uses, was repealed and new legislation was enacted specifically enumerating the permitted uses in General Business Districts and prohibiting any and all others. This is not disputed and from that date on, June 5, 1957, auto repair and paint shops were not included as a permitted use and therefore prohibited.”
Some confusion arises from the fact that the certificate of occupancy, which Avas issued on April 21,1955, purports to allow the extension of the gas station use unconditionally, but requires a special use permit for an auto body and paint shop. This certificate was erroneous on both counts. The Building Inspector had no authority to extend the gas station nonconforming use (see section 20 of the January, 1941 ordinance); nor did he have the right to require a special permit for a use which at that time was a permitted use. There is nothing in this record or the village ordinance which required such a special use permit.
We find the village Board of Trustees itself giving November, 1957 as the date of the significant amendment, the village counsel giving June 5, 1957 as the date, and the petitioner specifying it as September 16, 1957. Be that as it may, it is perfectly clear that prior to the amendment, whichever month it was, the auto body and paint shop use had been established for several years. It is obvious that an erroneous certificate of occupancy did not and could not invalidate a prior, valid building permit issued in accordance with the Building Code.
*45There is a clear distinction between a gasoline filling station and an auto repair and paint shop, as evidenced by the series of amendments made by the village itself which recognized the distinction. This practical construction by the village of its own ordinances settles any doubt as to the somewhat obscure meaning of the phrasing used.
We may concede that a person’s rights may not be enlarged by a permit erroneously issued by a village official, but only the extension of the gasoline station use to the new building was illegal, not the building itself. All that is necessary to give full effect to these restrictions is to forbid the extension of the gas station use.
Bay No. 1 presents a problem because it could not be used legally as an extension of the gas station, which is the use it was actually put to from the time it was built. While it could have been used legally as an auto body and paint shop, or for many other automotive uses, no such use was established in it prior to 1957. However it would be manifestly unfair to sterilize its use completely after 17 years, because of errors contributed to in part by village officials, albeit in good faith.
I agree that Special Term was in error in concluding that a vested right may be acquired under an illegal permit, but it is an oversimplification if not an outright error to characterize this as an illegal building permit, since how a building is constructed and how it is used are two entirely separate matters.
The specification of the intended use of a building in a building permit is surplusage. Building permits are concerned with construction, not use. An owner is entitled to use a building for any lawful purpose within the zoning ordinances and his rights can neither be enlarged nor diminished by a declaration of the intended use in a building permit. It is the certificate of occupancy which controls the use and this may be changed any time the occasion demands it.
We would err on the side of unnecessary harshness were we to outlaw a use in toto which was perfectly legal in large part when it started, because part of it was illegal. This is especially so where that part is severable, as it clearly is in this case.
I therefore concur in the affirmance as to Bays Nos. 2 and 3 and dismissal of the proceeding as to the appellants insofar as it is with respect to Bay No. 1, without costs. Further as to Bay No. 1,1 agree that it presents a special problem which may best be solved, as indicated in the opinion herewith by Acting Presiding Justice Shapiro, by granting a variance, if the petitioner be advised to apply for that relief.