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, 21 A.D.2d 974

Upon remission from the Court of Appeals, order unanimously affirmed, without costs of this appeal to any party. Memorandum: Our former decision was based upon a finding that the appellants had not timely taken their appeal to the Zoning Board of Appeals. In the light of the recent decision of the Court of Appeals herein (14 N Y 2d 356), we turn to the other issues in the case. We find that the determination of the Zoning Board of Appeals, which held that the space- between the west wall of the new structure and the east line of appellants’ property is a side yard and is not a rear yard within the meaning of

section 4 of

article VII of the Zoning Ordinance, is arbitrary and should be annulled. In all other respects the determination of the Zoning Board of Appeals is confirmed. (Appeal from order of Oneida Special Term dismissing the petition.) Present — Williams, P. J., Bastow, Goldman, Henry and Noonan, JJ.