222 A.D. 297 | N.Y. App. Div. | 1928
The action was brought by plaintiff, pursuant to section 42 of the Second Class Cities Law, to restrain a violation by the defendants of the Yonkers Zoning Ordinance by keeping a house and supplying food, lodging, and having care and control of children intrusted to their care by the parents ©r guardians of such children, for the purpose of profit. The house is located in a residential district. Under the Yonkers Zoning Ordinance of 1920 (Art. 2, § 3) no building or premises located in a residence district shall be used for any purpose except for one or more of the following uses:
“1. Dwellings or tenements, including the office of a physician, surgeon, dentist, artist or musician when situated in the same dwelling or apartment used by such physician, surgeon, dentist, artist or musician as his private dwelling.
“ 2. Lodging or boarding houses.
“ 3. Hotels.
“ 4. Churches.
“5. Schools, libraries or public museums.
“6. Clubs, excepting clubs the chief activity of which is a service customarily carried on as a business.
“ 7. Railroad passenger station.
“ 8. Farming, truck gardening, nurseries or green houses.
“ 9. Accessory uses customarily incident to the above uses, the term accessory use, however, not including a business or any building or use not located on the same lot with the building or use to which it is accessory. A garage or a group of garages for more than three motor vehicles shall not be permitted as an accessory use.”
The defendants keep from twenty to twenty-five children varying in age from seven to fourteen or fifteen years. They are normal, noisy children and play the games which such children usually play, including football, baseball and tennis, both in the yard of the premises and on the street. They engage in roller skating on the walks and in the neighborhood of the house. On Sundays the guardians and parents call to see them. The yard and porches
The judgment appealed from should be reversed upon the law and the facts, with costs, and judgment directed for the plaintiff, with costs. Findings of fact and conclusions of law inconsistent with this determination are reversed and new findings will be made in accordance herewith.
Lazansky, P. J., Kapper, Hagarty and Carswell, JJ., concur.
Judgment reversed upon the law and the facts, with costs, and judgment directed for the plaintiff, with costs. Findings of fact and conclusions of law inconsistent with this determination are reversed and new findings will be made in accordance herewith. Settle order on notice.