20 Misc. 2d 180 | N.Y. Sup. Ct. | 1959
This is an action for declaratory judgment in which the plaintiffs seek to enforce a certain restrictive covenant which allegedly affects land now owned by the Town of Islip and maintained as a public bathing beach, upon which it proposes to erect a public comfort station to conform with the requirements of the Public Health Law. On the theory that the restrictive covenant referred to does not prohibit the maintenance of a public beach or the erection of the proposed structure, the town on this motion for summary judgment seeks a dismissal of the complaint. In opposing the motion the plaintiffs cross-move for the relief demanded in their complaint.
Assuming the restrictive use to be binding upon the town,' and assuming the right of these plaintiffs to enforce the same, there remains before this court only the issue of law whether the particular present use of the premises and the proposed structure to be erected thereon constitute a violation of the covenant in the 1930 agreement. Clearly, use as a public park or bathing beach cannot be considered a violation of any of the specifically prohibited uses enumerated in the covenant. In order to interpret the intent of the original covenantors as to what other uses of the land were to be prohibited in futuro we must resort to ordinary rules of construction. Such a guide is the well-known doctrine of ejusdem generis which serves to make words of general import following an enumeration of specific things applicable only to things of the same general class. (28 C. J. S., Ejusdem, p. 1049.) Applying that doctrine to the words ‘ ‘ or for any other purpose that may cause or create noise, dust, excessive smoke, gases or disagreeable odors, or that may be otherwise detrimental to the value of property in the vicinity for residential purposes ” they must be construed as being applicable only to uses of the same general class or
Nor does the erection of a comfort station violate the covenant. In the light of modern sanitary science and the statutory requirements (Public Health Law, § 1340) and rules (State Sanitary Code, ch. 6, reg. 11) such an installation is a necessary adjunct to a bathing beach. It is also a legitimate park purpose. (Williams v. Gallatin, 229 N. Y. 248, 254.) Thus if, as we have determined, the use of the land as a park or bathing beach does not violate the restrictive covenant, the erection and maintenance of a public comfort station is likewise permitted.
The plaintiffs’ second cause of action alleging that the town in providing for the improvement acted contrary to the provisions of section 220 of the Town Law, is wholly without merit. The town acted with full authority pursuant to the provisions of the Local Finance Law and was not required to make their adoption of the resolution subject to a permissive referendum.
The defendant’s motion for summary judgment is granted and the cross motion denied.
Settle order accordingly.