City of Utica v. Ortner

256 A.D. 1039

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 22, 1939
• Status: Published

Opinion

Order reversed, with ten dollars costs and disbursements, and motion for temporary injunction granted and motion to dismiss the complaint denied, with ten dollars costs. Memorandum: The common council of the city of Utica had authority to enact the Zoning Ordinance in question here and the city of Utica was authorized to maintain an action in a court of competent jurisdiction to compel compliance with or to restrain by injunction the violation thereof, notwithstanding the fact that a penalty was provided therein for its violation. (Second Class Cities Law, art. 4, §§ 30, 42; General City Law, art. 2-A, § 20, subd. 22, as amd. by Laws of 1936, chap. 223.1 This ordinance is presumed to be constitutional. The record contains nothing to overcome this presumption. (Matter of Widfsohn v. Burden, 241 N. Y. 288, 296.) Plaintiff alleged that the defendants were violating the provisions of the ordinance. No special damage or injury to the public need be alleged. Equity will interfere to restrain violation of or to compel compliance with an ordinance of a common council. (People ex rel. Bennett v. Laman, 277 N. Y. 368, 383; Bond v. Cooke, 237 App. Div. 229; City of Yonkers v. Horowitz, 222 id. 297.) We think the complaint states a cause of action and that, under the undisputed facts, the plaintiff showed sufficient to entitle it to a temporary restraining order. (Village of Northport v. Walsh, 241 App. Div. 683; affd„ 265 N. Y. 458.) All concur. (The order denies a motion by plaintiff for a temporary injunction and grants a motion by defendant Ortner for a dismissal of the complaint, in an action to restrain said defendant from maintaining an undertaking parlor in his residence in violation of a Zoning Ordinance.) Present — Sears, P. J., Lewis, Cunningham, Taylor and Dowling, JJ.