Bruchhausen v. Murdock

170 Misc. 187, 9 N.Y.S.2d 923, 1939 N.Y. Misc. LEXIS 1520

• Court: New York Supreme Court
• Decided: January 6, 1939
• Status: Published

Opinion

Kadien, J.

This is a motion to vacate an order of certiorari to review the determination of the board of standards and appeals of the city of New York, which unanimously denied petitioner’s application for the erection and maintenance of a gasoline station upon unrestricted premises situated within 200 feet from the nearest exit or entrance to a public school.

The chairman of the board in my opinion correctly interpreted section 21 of the Building Zone Resolution when he stated: “As to the distance with reference to a public school, the same need exists for protection, regardless whether located in a residence, business or unrestricted district.”

The omission of the closing sentence from the last paragraph, similar to that in the second paragraph of section 21, does not remove its prohibition, irrespective of the use districts.

It is evident that the danger to school children is as real in an unrestricted area as it is in a restricted district. Section 21 of the Building Zone Resolution was framed for the safety, health and protection of school children. This section, therefore, must be liberally construed in favor of the public for whose benefit it was enacted.

Accordingly, the motion is granted.