Fremed v. Bayswater Park, Inc.

11 Misc. 2d 1017 | N.Y. Sup. Ct. | 1958

James J. Conroy, J.

Motion by plaintiffs for a temporary injunction restraining the defendants from advertising the projected operation of a certain country day school as a day camp and from operating said day school as a day camp.

Plaintiffs are homeowners residing adjacent or in the neighborhood of defendants’ property. The premises of all parties hereto are zoned as ‘ ‘ E-l ’ ’, which restricts its use to one- and two-family private dwellings. Defendants sought and obtained a variance permitting them to use their property as an ‘ ‘ academic school ’ ’. They are now advertising for students for the summer season of 1958. Plaintiffs claim that the defendants intend to operate a summer day camp and not a school.

“ Designating an object by some particular word does not change its nature, or make it something other than what it truly is. The form of the vehicle used does not control the nature of the enterprise; that is determined by the kind of services performed, and the manner in which it is conducted.” (International Ry. Co. v. Barone, 246 App. Div. 450, 454.) Defendants apparently recognize this principle, for in their opposing affidavits they say: ‘ ‘ 27. Whether a particular activity is a day school or a day camp can be determined by the type of staff, the nature of the curriculum and the emphasis placed on the activities.”

A brochure issued by the defendants bears the cover title “ A Summer Adventureland for Boys and Girls”. On the centerfold of said brochure is a map showing the location of various activities to be conducted. The activities listed are:

Boating

Baseball (two fields)

Basketball (two courts)

Handball

Corral

Archery

Putting green

Volleyball (three courts)

Ping Pong (two areas)

Goal-Hi

Golf cages

Paddle Tennis

Tennis

Swimming pool

Softball

Nursery playroom

Nursery school

Green House

Theatre Wing

Dining Room

Arts and Crafts Office

Along the left and right margins of the centerfold appears a list of activities as follows:

BOATING

Canoeing

Rowing-

Sailing

Water Skiing

Motor Boating

SWIMMING

Diving

Red Cross Instruction

Swimming Instruction

BASEBALL

Volleyball

Basketball

Handball

Indoor Roller Skating

GOLF

Tennis

Badminton

Paddle Tennis

Ping Pong

Riding-

Archery

Fencing

Shuffleboard

THEATRE ARTS WORKSHOP

Dramatics

Dance

Music

Singing

Stage-craft

Rhythm Band

Puppetry

Square and Folk Dancing

ARTS AND CRAFTS

Sketching

Metal Work

Woodwork

Ceramics

Painting

NATURE

Gardening

Animals

Pioneer projects

Council Fires

Barbecue

PHOTOGRAPHY

LIBRARY

TUTORING

(by special arrangement)

Languages

Mathematics

Science

It appears, therefore, that academic subjects are available only by special arrangement, and not as part of the regular curriculum. Judging by defendants’ advertising, it is evident that the project which they intend to operate is a summer day camp and not a school. Such use is not authorized by the present zoning of the property nor by the variance issued to the defendants.

The motion is, accordingly, granted to the extent of enjoining defendants from operating a summer day camp. Bond will be fixed in the sum of $1,000.

Settle order.