Fremed v. Bayswater Park, Inc.
This text of 11 Misc. 2d 1017 (Fremed v. Bayswater Park, Inc.) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Motion by plaintiffs for a temporary injunction restraining the defendants from advertising the projected operation of a certain country day school as a day camp and from operating said day school as a day camp.
Plaintiffs are homeowners residing adjacent or in the neighborhood of defendants’ property. The premises of all parties hereto are zoned as ‘ ‘ E-l ’ ’, which restricts its use to one- and two-family private dwellings. Defendants sought and obtained a variance permitting them to use their property as an ‘ ‘ academic school ’ ’. They are now advertising for students for the summer season of 1958. Plaintiffs claim that the defendants intend to operate a summer day camp and not a school.
“ Designating an object by some particular word does not change its nature, or make it something other than what it truly is. The form of the vehicle used does not control the nature of the enterprise; that is determined by the kind of services performed, and the manner in which it is conducted.” (International Ry. Co. v. Barone, 246 App. Div. 450, 454.) Defendants apparently recognize this principle, for in their opposing affidavits they say: ‘ ‘ 27. Whether a particular activity is a day school or a day camp can be determined by the type of staff, the nature of the curriculum and the emphasis placed on the activities.”
[1018]*1018A brochure issued by the defendants bears the cover title “ A Summer Adventureland for Boys and Girls”. On the centerfold of said brochure is a map showing the location of various activities to be conducted. The activities listed are:
Boating
Baseball (two fields)
Basketball (two courts)
Handball
Corral
Archery
Putting green
Volleyball (three courts)
Ping Pong (two areas)
Goal-Hi
Golf cages
Paddle Tennis
Tennis
Swimming pool
Softball
Nursery playroom
Nursery school
Green House
Theatre Wing
Dining Room
Arts and Crafts Office
Along the left and right margins of the centerfold appears a list of activities as follows:
Canoeing
Rowing-
Sailing
Water Skiing
Motor Boating
SWIMMING
Diving
Red Cross Instruction
Swimming Instruction
BASEBALL
Volleyball
Basketball
Indoor Roller Skating
[1019]*1019GOLF
Badminton
Ping Pong
Riding-
Fencing
Shuffleboard
THEATRE ARTS WORKSHOP
Dramatics
Dance
Music
Singing
Stage-craft
Rhythm Band
Puppetry
Square and Folk Dancing
ARTS AND CRAFTS
Sketching
Metal Work
Woodwork
Ceramics
Painting
NATURE
Gardening
Animals
Pioneer projects
Council Fires
Barbecue
PHOTOGRAPHY
LIBRARY
TUTORING
(by special arrangement)
Languages
Mathematics
Science
It appears, therefore, that academic subjects are available only by special arrangement, and not as part of the regular curriculum. Judging by defendants’ advertising, it is evident that the project which they intend to operate is a summer day [1020]*1020camp and not a school. Such use is not authorized by the present zoning of the property nor by the variance issued to the defendants.
The motion is, accordingly, granted to the extent of enjoining defendants from operating a summer day camp. Bond will be fixed in the sum of $1,000.
Settle order.
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Cite This Page — Counsel Stack
11 Misc. 2d 1017, 176 N.Y.S.2d 729, 1958 N.Y. Misc. LEXIS 3252, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fremed-v-bayswater-park-inc-nysupct-1958.