In the Matter of Alexander A. Pansa et al., Appellants, v. Armand Damiano et al., Constituting the Zoning Board of Appeals of the City of Utica, Respondents, 15 N.Y.2d 590

Order reversed, with costs in all courts, and determination of the Zoning Board of Appeals annulled in a memorandum. On July 10, 1964 (14 N Y 2d 356) we ordered the appeal held in this court and requested the Appellate Division meanwhile to amend its order so as to state its decision as to certain questions. The Appellate Division (21 A D 2d 974, Sept. 24, 1964), pursuant to our request, has. now amended its order so as to annul the holding of the Zoning Board of Appeals that the space between the west wall of the new structure and the east line of appellants’ property is a “side yard”.

The Appellate Division held — and in this we now concur — that this space was a ‘ ‘ rear yard ’ ’ within the meaning of the zoning ordinance. Since we have already held (14 N Y 2d 356, 360, supra) that the appeal to the Zoning Board of Appeals was taken in time, the building permit for the new structure must be held to have been illegally granted. Concur: Chief Judge Desmond and Judges Dye, Fuld, Van Voorhis, Burke, Scileppi and Bergan.