222 A.D. 308 | N.Y. App. Div. | 1928
Defendant’s motion to dismiss the complaint because it does not state facts sufficient to constitute a cause of action has been granted. The action is brought to recover a judgment for $5,000 damages and to restrain the defendant from
It is alleged and may be shown that both plaintiff and defendant own property in the city of Troy; that defendant, in disregard of the ordinances of the city, intends to construct a-motor vehicle service station on his property without first securing the necessary permit from the city; that such permits as the defendant had secured had expired or had been revoked before the defendant had begun the construction thereof, and these were granted without the required consents of the necessary number of property owners, or the necessary extent of frontage, within the limits fixed by the ordinances. It is further alleged: “ Thirteenth. That under cover of the permits already issued to defendant as hereinbefore set forth, the defendant is now erecting a motor vehicle service station for the sale at retail of gasoline, oil and other automobile supplies at his said premises in the city of Troy and has installed said storage tanks designed to hold four thousand gallons of gasoline. Fourteenth. That the maintenance of such motor vehicle service station at said location by said defendant will materially reduce the value of plaintiff’s said premises, and the operation of said service station by defendant will be a continuous violation of said ordinances and will be a public nuisance, and will result in irreparable loss and damage to plaintiff.”
The permits, so fat as granted to defendant, were granted without jurisdiction and are without effect. (Miller v. City of Amsterdam, 149 N. Y. 288, 293, 297.)
The question remains whether plaintiff may maintain the action. The Zoning Ordinances of the city of Troy, known as the Building Zone Ordinance of 1923 and as the Gasoline Ordinance of 1923, were enacted in the interest of public health, public safety, or the general welfare. (City of Utica v. Hanna, 202 App. Div. 610; General City Law, § 20, subd. 25, as added by Laws of 1913, chap. 247, and Laws of 1917, chap. 483.) An individual may not maintain an equity action to restrain the violation of a statute or a city ordinance, unless some damage or injury to his person or property has been or will be done. (Empire City Subway Co. v. Broadway & S. A. R. R. Co., 87 Hun, 279; affd., 159 N. Y. 555.)
We think the complaint does not show that the plaintiff has the requisite interest to enable him to maintain this action. His property is not adjacent to defendant’s property, but is in the zone or the limit within which the consent of property owners is required by the ordinances. In paragraphs “ thirteenth ” and
The judgment and order appealed from should be affirmed, with costs.
Cochrane, P. J., Hinman, Davis and Whítmyer, JJ., concur.
Judgment and order affirmed, with costs.