Hillside Property Owners Ass'n v. Salanter Akiba Riverdale Academy

45 A.D.2d 683, 356 N.Y.S.2d 323, 1974 N.Y. App. Div. LEXIS 4755

Opinion

Judgment, Supreme Court, Bronx County, entered on July 17, 1973, unanimously modified, on the law, to the extent of striking therefrom the decretal paragraph dismissing the complaint and substituting therefor a provision declaring that construction of the school building as proposed does not constitute a public nuisance and that such facility is not barred by reason of the restrictive covenants set forth in the complaint, and, as so modified, the judgment is affirmed. Respondent shall recover of appellants $60 costs and disbursements of this appeal. We adopt the findings and conclusions reached by Trial Term. However, since this was an action for declaratory judgment, it was error to dismiss the complaint and a declaration of the parties’ rights should have been made. (See St. Lawrence Univ. v. Trustees of Theol. School of St. Lawrence Univ., 20 N Y 2d 317, 325; Lanza v. Wagner, 11 N Y 2d 317, 334, app. dsmd. 371 U. S. 74; New Yorh Sportings Arms Assn. v. City of New York, 31 A D 2d 793, and cases cited therein.) Concur—McGivern, P. J., Markewich, Steuer, Capozzoli and Macken, JJ.