¶1Assuming the factual allegations of the complaints to be true, plaintiffs Bottkamp (in the one complaint) are owners, and plaintiffs (in the companion complaint) are lessees, of a parcel of real estate in *378defendant town. Application for a permit to build a diner thereon was willfully refused on May 9, 1955 by defendant Young, who is Manager of the Building Department and Chief Building Inspector of the town, and by the town itself, and thereafter by the Town Board on August 25, 1955.
¶2Despite a Supreme Court order of December 1, 1955 directing Young to issue the permit forthwith (see Matter of Dengeles v. Young, 1 Misc 2d 692), defendants refused to comply. Instead, the defendant town amended its zoning ordinance on June 12, 1956, so as to exclude a diner as a conforming use (see Matter of Dengeles v. Young, 3 A D 2d 758).
¶3By reason of the defendants’ willful refusals, money damages have resulted.
¶4A public officer’s willful denial of a permit so as to stall an applicant until such future time as an amended zoning ordinance can be enacted in order to deprive the applicant of his right to the permit, is misconduct which subjects the public officer to judicial direction to compel him to issue the permit (Matter of Fairchild Sons v. Rodgers, 242 App. Div. 651, affd. 266 N. Y. 460; Matter of Calton Ct. v. Switzer, 221 App. Div. 799; Matter of Dubow v. Ross, 254 App. Div. 706; Matter of Harris v. Coffey, 6 AD 2d 898).
¶5If defendants here, by their misconduct, willfully deprived the applicants of their rights, as alleged, the defendants should also be held liable for any damages suffered by the applicants as a result of such misconduct (Robinson v. Chamberlain, 34 N. Y. 389; Disbrow v. Mills, 62 N. Y. 604). The town no longer has immunity for the consequences of its wrongful acts done in the performance of its governmental functions.
¶6In the light of the facts alleged in the complaints, whether plaintiffs could have acquired a vested right to use the premises for a diner as of the date of the amendment of the zoning ordinance is a question which should be determined on the basis of the proof adduced upon trial.
¶7It should be noted that liability is sought to be imposed upon the defendants here, not because they exercised their discretion erroneously, but because they disobeyed and defied a clear mandate of the court. The element of discretion was in no way involved. Defendants deliberately delayed compliance until they were able to completely circumvent the order by the enactment of the zoning amendment.
¶8A trial should be had so that all pertinent facts may be adduced and developed. There should not be a summary disposition upon the basis of the pleadings.
¶9*379Christ and Brennan, JJ., concur with Hopkins, J.; Ughetta, Acting P. J., dissents and votes to affirm the order, in opinion in which Hill, J., concurs.
¶10Order reversed, without costs, motion granted, and complaints dismissed, without costs.