125 Misc. 215 | New York County Courts | 1925
The defendant was convicted of a violation of ordinance No. 11 of the zoning ordinances of the village of Málveme, Nassau county. Section 8, paragraph “ C ” of said ordinance provides as follows: “ Where cars, parts or implements are stored outside of a garage, they shall be kept at least sixty feet from the street upon which the building fronts and shall be suitably and adequately screened from all streets permitting a view thereof.”
The ordinance in question appears to have been adopted on January 17, 1924. The defendant acquired the property upon which it is claimed the violation of the said ordinance occurred in 1921 and erected thereon a garage in the same year, at a cost of some $20,000.
The record shows that the property was acquired for the specific purpose of erecting thereon a garage and for the purpose of conducting a general garage business.
From the time the garage was completed in 1921 down to 1925 it appears the defendant has continuously used and occupied the property in question as a garage, keeping some of the automobiles inside and some outside of the garage.
In other words, the defendant had long previous to the adoption of the ordinance invested capital, set up a business and conducted the same upon the premises in question. The evidence does not indicate that the defendant has made any different use of the property since the adoption of the ordinance than he did before.
There can be no doubt, I think, about the authority of the village to control by granting permits for any business affecting the health, comfort and safety of the inhabitants of the village. (People ex rel. Lodes v. Dept. of Health of N. Y., 189 N. Y. 187; Southern Leasing Co. v. Ludwig, 168 App. Div. 233; People ex rel. Publicity Leasing Co. v. Ludwig, 172 id. 71.)
In this case, however, it is not claimed that any question as to public health, morals, comfort or safety is involved, and it clearly appears that before the ordinance -in question was adopted the defendant had acquired vested rights in the property in question, and, therefore, to sustain the ordinance would be to deprive the defendant of the free use and enjoyment of his property.
Courts have repeatedly held that as to one who has acquired vested rights in property the municipality is without power to take
I am, therefore, of the opinion that the ordinance in question is void as to this defendant.
Another objection to the judgment of conviction is that the adoption of the ordinance was not properly proven at the trial. This objection I am convinced is well founded "as no proof was offered as to manner of adoption; in fact the record is barren of any proof relative to adoption upon which the validity of the ordinance could be predicated. This failure of proof is sufficient to warrant a reversal. (People v. Chapman, 88 Misc. 469; People v. Bell, 148 N. Y. Supp. 753.)
For the reasons above stated the judgment of conviction is reversed and fine remitted.
