Latham, J.
In this action to enjoin the operation of a religious school on property subject to a private residential use covenant, the issue is whether there is a violation of the constitutional guarantees of religious freedom by the enforcement of the covenant against the defendant, which purchased with knowledge of the covenant and of the plaintiffs’ intention to enforce it.
In 1908, a covenant was attached to six lots, three on the north side and three on the south side of a short dead-end street (now named Virginia Street) off Empire Avenue, which is a well-traveled two-lane street in Far Rockaway, Queens. The defendant’s property is situated at the dead end, where all traffic, including emergency vehicles, turns around. The covenant provides in pertinent part that none of the six lots ‘ ‘ shall be used except for one private residence” and that no “ apartment buildings, boarding houses, stores, business houses, barns or stables ” shall be “ erected or maintained ”, Of the six restricted lots, the four corner ones are improved with single-family residences while the two middle lots are vacant. The surrounding area contains one-family homes in all directions, with the exception of a few two-family homes and a four-story apartment house, all of which have been there for many years.
Plaintiffs Dr. Stanley A. and Mrs. Susan K. Ginsberg own and reside in a single-family home on the restricted southeast corner lot. Dr. Ginsberg uses part of the house as a medical office 12 hours a week. His father, who was also a physician, lived and practiced in the house from 1932 on. Dr. Ginsberg started his practice in 1964, paying rent for the office first to his father and then, after his father’s death, to his mother. In 1969, his mother transferred the house to the plaintiffs.
In or about 1963, an orthodox synagogue purchased the adjacent unrestricted property south of the plaintiffs’, demolished two private dwellings, and erected its temple. At the same time, the synagogue bought the adjacent vacant restricted lot west of the plaintiffs’, paved and lighted it, and used it as a parking lot without objection from the plaintiffs or their predecessors apart from minor complaints as to fencing and lighting which were modified pursuant to the plaintiffs’ request. Synagogue traffic enters the parking lot through Virginia Street and exits [336]*336directly onto Empire Avenue by the driveway on the unrestricted portion of the synagogue’s premises, thus not clogging Virginia Street or substantially disturbing the one-family residential atmosphere. The Trial Justice believed Dr. Ginsberg’s statement that the use of the lot for parking was not offensive to him.
In August, 1971, concededly with knowledge of the covenant and of the plaintiffs’ intention to enforce it, the defendant, Yeshiva of Far Rockaway, apparently not affiliated with the synagogue, purchased the restricted northwest corner lot at the dead end of the block diagonally across from the plaintiffs. On the eve of purchase, the plaintiffs’ attorneys advised the defendant of the plaintiffs’ intention to enforce the covenant. In September, 1971, the defendant began to operate an all-day religious school in the former private dwelling for grades 9 through 12. The original nine rooms, unchanged, now serve as four classrooms, an office, a prayer room where the boys pray in the morning and the evening, and a kitchen, with two of the rooms used as a dormitory for three out-of-town boys. The hours are 9 a.m. to 6 p.m. Monday through Friday, with additional hours on Sunday mornings and meetings on Thursday evenings. There are 47 students ages 14 to 18 and some eight teachers. Dr. Ginsberg has been disturbed by the students playing roller skate hockey on the parking lot and in the street in the late afternoon and early evening and by the frequent failure of the school to remove some 8 to 10 garbage cans from the street for several days after collection.
The plaintiffs commenced this action to enforce the covenant on or about February 1, 1972. In or about March, 1972, the defendant purchased the adjoining vacant restricted lot. It plans to further expand the school. Though the record is barren with respect to a connection between the synagogue and the school, it is apparent that a synagogue and a yeshiva are both identified with the Jewish faith.
The trial court.found that despite the synagogue’s use of one lot as a parking lot and some deterioration in the residential character of the area, the area retains a residential character of substantial value. This value will be adversely affected by the presence of groups of students of high school age and by the use and servicing of the school property by persons other than private residents. In reliance on Evangelical Lutheran Church v. Sahlem (254 N. Y. 161), the trial court enjoined the operation of the school.
On appeal, the defendant seeks to distinguish Sahlem on the ground that in that case the covenanted area was exactly, the [337]*337same as when the restriction was placed on the land, while at bar, as contended by the defendant, there has been substantial change. The defendant inter alia argues that, in balancing the equities, religious corporations should be distinguished from commercial enterprises (cf. Matter of Westchester Reform Temple v. Brown, 22 N Y 2d 488, 493).
It has long been the rule in this and other jurisdictions that residential use covenants are enforceable against religious institutions such as churches and synagogues (Evangelical Lutheran Church v. Sahlem, 254 N. Y. 161, supra; Ann. 13 ALR, 2d 1239; ALR 2d Later Case Service; 12 Syracuse L. Bev. 347). Chief Judge Cabdozo, speaking for the Court of Appeals, said (p. 168) : “ Neither at law nor in equity is it written that a license has been granted to religious corporations, by reason of the high purpose of their being, to set covenants at naught. Indeed, if in such matters there can be degrees of obligation, one would suppose that a more sensitive adherence to the demands of plighted faith might be expected of them than would be looked for of the world at large. ’ ’ In that case, as at bar, the plaintiff, with knowledge of the restrictive covenants and of the defendant’s opposition, purchased land opposite the defendant’s and sought to build a church. In the absence of proof that ‘1 the character of the neighborhood has so changed as to defeat the object and purposes for which the restrictions were imposed ,f, the Court of Appeals declared the covenants enforceable both at law and in equity (Sahlem, supra, p. 166). The facts at bar are entirely similar to those in Sahlem, with the added circumstance that the purchaser here is a school, not a church or synagogue. Sahlem is clearly dispositive.
The dissenters, ignoring the limits of both the briefs and the arguments before the trial court, attack the viability of Sahlem in the light of more recent decisions with regard to zoning and restrictive covenants.
Clearly, however, zoning is an aspect of the police power, asserted for the general welfare, and must bear a substantial relation to the public health, safety, morals, or general welfare (Euclid v. Ambler Co., 272 U. S. 365). It is conceded that all schools,
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Latham, J.
In this action to enjoin the operation of a religious school on property subject to a private residential use covenant, the issue is whether there is a violation of the constitutional guarantees of religious freedom by the enforcement of the covenant against the defendant, which purchased with knowledge of the covenant and of the plaintiffs’ intention to enforce it.
In 1908, a covenant was attached to six lots, three on the north side and three on the south side of a short dead-end street (now named Virginia Street) off Empire Avenue, which is a well-traveled two-lane street in Far Rockaway, Queens. The defendant’s property is situated at the dead end, where all traffic, including emergency vehicles, turns around. The covenant provides in pertinent part that none of the six lots ‘ ‘ shall be used except for one private residence” and that no “ apartment buildings, boarding houses, stores, business houses, barns or stables ” shall be “ erected or maintained ”, Of the six restricted lots, the four corner ones are improved with single-family residences while the two middle lots are vacant. The surrounding area contains one-family homes in all directions, with the exception of a few two-family homes and a four-story apartment house, all of which have been there for many years.
Plaintiffs Dr. Stanley A. and Mrs. Susan K. Ginsberg own and reside in a single-family home on the restricted southeast corner lot. Dr. Ginsberg uses part of the house as a medical office 12 hours a week. His father, who was also a physician, lived and practiced in the house from 1932 on. Dr. Ginsberg started his practice in 1964, paying rent for the office first to his father and then, after his father’s death, to his mother. In 1969, his mother transferred the house to the plaintiffs.
In or about 1963, an orthodox synagogue purchased the adjacent unrestricted property south of the plaintiffs’, demolished two private dwellings, and erected its temple. At the same time, the synagogue bought the adjacent vacant restricted lot west of the plaintiffs’, paved and lighted it, and used it as a parking lot without objection from the plaintiffs or their predecessors apart from minor complaints as to fencing and lighting which were modified pursuant to the plaintiffs’ request. Synagogue traffic enters the parking lot through Virginia Street and exits [336]*336directly onto Empire Avenue by the driveway on the unrestricted portion of the synagogue’s premises, thus not clogging Virginia Street or substantially disturbing the one-family residential atmosphere. The Trial Justice believed Dr. Ginsberg’s statement that the use of the lot for parking was not offensive to him.
In August, 1971, concededly with knowledge of the covenant and of the plaintiffs’ intention to enforce it, the defendant, Yeshiva of Far Rockaway, apparently not affiliated with the synagogue, purchased the restricted northwest corner lot at the dead end of the block diagonally across from the plaintiffs. On the eve of purchase, the plaintiffs’ attorneys advised the defendant of the plaintiffs’ intention to enforce the covenant. In September, 1971, the defendant began to operate an all-day religious school in the former private dwelling for grades 9 through 12. The original nine rooms, unchanged, now serve as four classrooms, an office, a prayer room where the boys pray in the morning and the evening, and a kitchen, with two of the rooms used as a dormitory for three out-of-town boys. The hours are 9 a.m. to 6 p.m. Monday through Friday, with additional hours on Sunday mornings and meetings on Thursday evenings. There are 47 students ages 14 to 18 and some eight teachers. Dr. Ginsberg has been disturbed by the students playing roller skate hockey on the parking lot and in the street in the late afternoon and early evening and by the frequent failure of the school to remove some 8 to 10 garbage cans from the street for several days after collection.
The plaintiffs commenced this action to enforce the covenant on or about February 1, 1972. In or about March, 1972, the defendant purchased the adjoining vacant restricted lot. It plans to further expand the school. Though the record is barren with respect to a connection between the synagogue and the school, it is apparent that a synagogue and a yeshiva are both identified with the Jewish faith.
The trial court.found that despite the synagogue’s use of one lot as a parking lot and some deterioration in the residential character of the area, the area retains a residential character of substantial value. This value will be adversely affected by the presence of groups of students of high school age and by the use and servicing of the school property by persons other than private residents. In reliance on Evangelical Lutheran Church v. Sahlem (254 N. Y. 161), the trial court enjoined the operation of the school.
On appeal, the defendant seeks to distinguish Sahlem on the ground that in that case the covenanted area was exactly, the [337]*337same as when the restriction was placed on the land, while at bar, as contended by the defendant, there has been substantial change. The defendant inter alia argues that, in balancing the equities, religious corporations should be distinguished from commercial enterprises (cf. Matter of Westchester Reform Temple v. Brown, 22 N Y 2d 488, 493).
It has long been the rule in this and other jurisdictions that residential use covenants are enforceable against religious institutions such as churches and synagogues (Evangelical Lutheran Church v. Sahlem, 254 N. Y. 161, supra; Ann. 13 ALR, 2d 1239; ALR 2d Later Case Service; 12 Syracuse L. Bev. 347). Chief Judge Cabdozo, speaking for the Court of Appeals, said (p. 168) : “ Neither at law nor in equity is it written that a license has been granted to religious corporations, by reason of the high purpose of their being, to set covenants at naught. Indeed, if in such matters there can be degrees of obligation, one would suppose that a more sensitive adherence to the demands of plighted faith might be expected of them than would be looked for of the world at large. ’ ’ In that case, as at bar, the plaintiff, with knowledge of the restrictive covenants and of the defendant’s opposition, purchased land opposite the defendant’s and sought to build a church. In the absence of proof that ‘1 the character of the neighborhood has so changed as to defeat the object and purposes for which the restrictions were imposed ,f, the Court of Appeals declared the covenants enforceable both at law and in equity (Sahlem, supra, p. 166). The facts at bar are entirely similar to those in Sahlem, with the added circumstance that the purchaser here is a school, not a church or synagogue. Sahlem is clearly dispositive.
The dissenters, ignoring the limits of both the briefs and the arguments before the trial court, attack the viability of Sahlem in the light of more recent decisions with regard to zoning and restrictive covenants.
Clearly, however, zoning is an aspect of the police power, asserted for the general welfare, and must bear a substantial relation to the public health, safety, morals, or general welfare (Euclid v. Ambler Co., 272 U. S. 365). It is conceded that all schools, public and private, and religious institutions are protected from the full impact of zoning restrictions because of their contribution to the public welfare (1 Anderson, New York Zoning Law and Practice [2d ed.], pp. 435, 462-463; Matter of Diocese of Rochester v. Planning Bd. of Town of Brighton, 1 N Y 2d 508, 526). While the Court of Appeals has stated that a municipality’s lack of power to limit the use or erection of [338]*338structures for churches and synagogues is founded on the constitutional guarantees of freedom of worship (Matter of Community Synagogue v. Bates, 1 N Y 2d 445, 458; Matter of Westchester Reform Temple v. Brown, 22 N Y 2d 488, 496, supra), at the same time the court noted that appropriate restrictions may nevertheless be imposed on churches and schools and they may also be excluded (Matter of Diocese of Rochester v. Planning Bd. of Town of Brighton, 1 N Y 2d 508, 526, supra; Matter of Westchester Reform Temple v. Brown, 22 N Y 2d 488, 497, supra).
There is a fundamental distinction between zoning restrictions and private covenants. Zoning is an encroachment on private property rights and its enforcement requires the justification of an overriding public interest. In contrast, the restrictive private covenant is itself a property right and its subordination to the right of the purchaser is “ condemnation without authority of law ” (Christ’s Methodist Church v. Macklanburg, 198 Okla. 297, 300 [emphasis added] ).
Reliance by the dissenters on Shelley v. Kraemer (334 U. S. 1) is completely misplaced. Unlike the restrictions at bar, the covenants considered in Shelley were racially discriminatory on their face, as clearly and directly pointed out in Ireland v. Bible Baptist Church (480 S. W. 2d 467 [Tex.], cert. den. sub nom. Bible Baptist Church v. Ireland, 411 U. S. 906).
Furthermore, the Supreme Court of the United States has shown little disposition to extend Shelley (70 Harv. L. Rev. 1428, 1437, citing Black v. Cutter Labs., 351 U. S. 292 and Rice v. Sioux City Cemetery, 349 U. S. 70).
The dissenters’ reliance on Marsh v. Alabama (326 U. S. 501) is also misplaced. In Marsh, a company-owned town sought to ban the distribution of religious literature on a sidewalk in its shopping district. The town and its. .¡shopping district were accessible to and freely used by the public in general. In reversing a conviction for criminal trespass, the ¡Supreme Court merely held that people who live in company towns have the obligations of all other citizens and the consequent need for uncensored information. The case is inapposite.
It must further be observed that even in zoning, exclusion of religious institutions is not impossible. The availability of alter[339]*339native locations would be a highly relevant consideration (70 Harv. L. Rev. 1428, 1436). The ordinance may be constitutional while the particular application is not (Matter of Westchester Reform Temple v. Brown, 22 N Y 2d 488, supra).
To support their argument that the defendant’s school is such an exercise of religion as renders unenforceable the plaintiffs’ property right, the dissenters rely on a decision which held that parochial schools involve sufficient religious activity and purpose to invalidate State aid (Lemon v. Kurtsman, 403 U. S. 602). However, it requires very little religious activity to run afoul of the Establishment Clause. A short daily prayer is an impermissible religious activity for a public school (Abington School Dist. v. Schempp, 374 U. S. 203), but no one argues that the same daily prayer converts the public school to a religious school.
In the face of its conceded knowledge of the covenant and the warning on the eve of purchase that the plaintiffs would enforce their rights, the defendant purchased the restricted corner lot and immediately opened its school. Six months later, despite the commencement of this action, the defendant arrogantly purchased the adjoining restricted lot with admitted plans to expand.
The area subject to the covenant is limited to six lot's on one short block terminating in a dead end. There is no claim by the defendant that it is excluded from a larger nearby area by the operation of similar restrictions. On the contrary, the neighboring synagogue purchased unrestricted property adjacent to the plaintiffs’ and demolished two private residences to construct its building. Nor does the defendant school claim that the property in question is particularly suited to its purpose, ■ that it possesses some unique advantage for the operation of its school. The facts are contrary. The probable need for emergency vehicles is much greater in an expanding school with a present population of some 60 students and teachers than it is in a one-family residence, while a building located at the blind end of a dead-end street is less accessible than one on an open street.
In this short dead-end street, noise pollution is magnified and contained. Should the plaintiffs and others who bought in reliance on the restrictive covenant be helpless to protect themselves? No balancing of constitutional rights can support such a conclusion on the facts at bar.
The judgment and order should be affirmed, with one bill of costs.
Cf. West Hill Baptist Church v. Abbate (53 Ohio Op. 2d 107,112) where two churches of other religious denominations had been erected in the large restricted area and the court said: “ The appearance of discrimination in favor of certain religious denominations " ” * is given by the existence of these churches * * ' the presence of these two churches in this area indicates that a choice was made by the beneficiaries of the covenant between denominations.”