Village of North Pelham v. Ohliger

216 A.D. 728 | N.Y. App. Div. | 1926

Judgment reversed on the law and the facts, with costs, and judgment directed for plaintiff as prayed for in paragraphs 4 and 6 of the prayer for relief in the complaint, with costs. Aside from the fact that there was no proof to overcome the presumption that the ordinance^* was a reasonable exercise of the police power (City of Rochester v. Macauley-Fien M. Co., 199 N. Y. 207; Matter of Stubbe v. Adamson, 220 id. 459), we hold the ordinance is such reasonable exercise as a matter of law. (Matter of Wulfsohn v. Burden, 241 N. Y. 288, decided by Court of Appeals November 24, 1925.) The'finding of fact 11 7,” “ That the plaintiff village herein permitted the construction and erection of said garage without protest by its officers until the 24th day of November, 1924,” is not supported by the evidence. Therefore, conclusion of law “ 3 ” is unwarranted. But even if the finding were supported by proof, it would not justify a conclusion that plaintiff is chargeable with laches or is estopped from proceeding against defendants. Defendants knew the building operation was in violation of law. The alleged failure of the village authorities to enforce the law cannot be visited upon the village. Kelly, P. J., Rich, Jaycox, Kapper and Lazansky, JJ., concur. Settle order reversing findings and containing findings accordingly on five days’ notice.

* See North Pelham Zoning Ordinance, Nov. 16, 1921, No. 40.— [Rep.