Buffalo Red-I-Mix Concrete Corp. v. Foell 1 A.D.2d 762

Orders reversed upon the law, without costs of this appeal to any party, and petition dismissed without prejudice to bring such other or further proceeding as it may be advised. Memorandum: Absent a showing, which is not here present, that petitioner had a clear legal right to the relief sought, the orders appealed from should be reversed and the petition dismissed without prejudice to bring such other or further proceeding as it may be advised. The town clerk was without authority to issue a building permit in the absence of approval by the town board. On this record mandamus does not lie against the town clerk or the building inspector. We are unable to review the proceedings before the town board or the zoning board of appeals as such proceedings are not included in the record. All concur. (Appeal from two orders of Erie Special Term (1) directing the town clerk and building inspector to issue, on payment of fees, a building permit to petitioner for the erection of a ready mix concrete plant on petitioner’s property, and (2) affirming the provisions of the previous order after reargument and taking of testimony.) Present — McCurn, P. J., Vaughan, Kimball, Wheeler and Van Duser, JJ.