Oppenheimer v. Kraus

221 A.D. 773

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 15, 1927
• Status: Published

Opinion

— Peremptory mandamus order unanimously affirmed, with costs. The resolution in question does not prohibit the maintenance of a lunch room in zone 4, nor does it prohibit the use, for restaurant purposes, of a structure designed in the form of a wagon. The resolution does prohibit, generally, the use, for business purposes, of any structure, no matter of what design, unless it “ has a frontage of at least 20 feet and a depth of at least 50 feet and if the structure consists of only a ground floor then and in that event the ceiling must be at least 10 feet in height from the floor and the cornice must be at least 16 feet from the pavement.” So, by the terms of the resolution, the respondent is deprived of the right to maintain a lawful business on his property unless the structure in which he intends to maintain it is at least twenty feet in width and at least fifty feet in depth. The effect is, not only to deprive the respondent of a lawful right, but to prohibit every owner of a lot the width of which is less than twenty feet and the depth of which is less than fifty feet, from erecting thereon a structure to be used for business purposes. The resolution is arbitrary and unreasonable. It does not serve a purpose either useful or aesthetic, nor does it in any way promote public health, public morals, public safety, public business, or general prosperity. To enforce it would be to deprive owners of their property without due process of law. Present — Kelly, P. J., Manning, Kapper, Lazansky and Hagarty, JJ.