248 A.D. 737 | N.Y. App. Div. | 1936
The action is for a permanent injunction restraining the defendants, constituting the town board of the town of Oyster Bay, from erecting an incinerator and entering into a contract for its construction, and from permitting the site described in the complaint to be used for any purpose other than those specified in a residence district. Judgment dismissing the complaint on the pleadings reversed on the law, without costs. Order denying plaintiffs’ motion for an injunction pendente lite affirmed, -without costs. Accepting the allegations of the complaint as true, it states a good cause of action. Therefore, the court erred in dismissing it. Whether any zoning regulation is reasonable and conducive to the public welfare and bears a substantial relation to the public health, safety or general welfare are questions of fact. In support of the motion for an injunction plaintiffs have not shown they have a reasonable prospect of success or that their damage will be irreparable if the wrong complained of is permitted to continue. They merely state their property will depreciate and become unsuitable for residence purposes if the incinerator is erected. Assuming there -will be some depreciation of plaintiffs’ property and they will suffer special hardship if the incinerator is erected, this is insufficient to invalidate a zoning regulation which promotes the general welfare. (Matter of Wulfsohn v. Burden, 241 N. Y. 288; Dowsey v. Village of Kensington, 257 id. 221; Morgan v. City of Binghamton, 102 id. 500.) Lazansky, P. J., Young, Hagarty, Johnston and Adel, JJ., concur.