Reformed Church of Mile Square v. City of Yonkers

8 A.D.2d 639, 185 N.Y.S.2d 985, 1959 N.Y. App. Div. LEXIS 8951

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 27, 1959
• Status: Published

Opinion

In an action for a judgment declaring that an amendment to the Building Zone Ordinance of the City of Yonkers in March, 1958, rezoning appellant’s property, is invalid as “ Spot zoning ”, and for other relief, the appeal is from so much of an order as denied appellant’s motion to vacate a notice for its examination before trial. Order modified (1) by inserting in subdivision “2” of the first ordering paragraph the word and figure “ in 1953 ” after the word “premises” and by striking therefrom everything following the word “ordinance”, (2) by striking subdivision “3" from said paragraph, and (3) by inserting in subdivision “ 4 ” of said paragraph the word and figure “ in 1953 ” after the words “amendment and” and by striking therefrom everything following the word “ordinance”. As so modified, order insofar as appealed from affirmed, without costs. The examination as to the use of the premises prior to the amendment to the zoning ordinance in September, 1953, so as to show the valid nonconforming use thereafter, should be limited to the use existing at the time of the passage of such amending ordinance (cf. People v. Miller, 304 N. Y. 105, 107; Building Zone Ordinance of City of Yonkers, §§ 4-B-550, 7-B-10). Subdivision “3” relating to property acquired by appellant, even if its materiality be assumed, was unnecessary as the facts sought were matters of public record (cf. Vunk v. Roe, 265 App. Div. 1060). In other respects, it is our opinion that the examination was properly allowed. (Cf. Reformed Church of Mile Square v. City of Yonkers, 8 A D 2d 639.) Nolan, P. J., Wenzel, Ughetta, Hallinan and Kleinfeld, JJ., concur.