5 A.D.2d 932 | N.Y. App. Div. | 1958
Appeal from a judgment of an Official Referee which restrained the defendant town from enforcing an ordinance prohibiting the erection of any drive-in theaters within the town except by permission of the Town Board. On March 14, 1956 the Town Board of the defendant town passed an ordinance prohibiting the construction of drive-in theaters within the town, stating its authority to adopt the ordinance as subdivisions 11, 12 and 15 of section 130 of the Town Law. Thereafter plaintiffs negotiated for the purchase of certain property within the town for the purpose of constructing a drive-in theater. At that time it may be found that the plaintiffs had notice of the prohibitory ordinance but on legal advice considered it invalid. On January 3, 1957 the Town Board rescinded the ordinance mentioned and adopted another ordinance, stating its authority to be the same sections of the Town Law just cited, which purported to regulate the construction of drive-in theaters by providing that no such theater should be constructed within the town until its plans had been filed