Lewis, Ch. J.
The plaintiffs are owners of residential properties in the village of Pelham Manor, Westchester County, which are located either contiguous to, or in the immediate vicinity of, improved property known as No. 975 Split Rock Road, owned by the defendant corporation. The purposes for which the defendant corporation was organized are “ To voluntarily assist the slow and mentally retarded child and to ascertain through study and research, the problems and causes of mental retardation and means for improving the condition of the child; develop a better understanding of, and more wholesome and helpful attitude toward mental retardation; to serve as a clearing house for information about the mentally retarded child, and to voluntarily assist parents of the mentally retarded child, in meeting their problems.”
By their complaint herein plaintiffs allege in substance that it is the purpose of the defendant corporation to conduct on its premises at No. 975 Split Rock Road, in accord with its corporate powers, a school for the mental and physical development of mentally retarded children; that such uses of its property by the defendant are in violation of the zoning ordinance of the Village of Pelham Manor which prohibits the maintenance in that village of an “ institution for the care of invalids or mental defectives that the presence of defendant’s pupils at its school or institution and in the village will of necessity cause close and intimate contact between said mental defectives and plaintiffs and plaintiffs’ children, and that such daily contact and the action and mannerisms of said mental defectives will have a profound, deleterious, depressing effect upon the minds, hearts, emotions and nervous systems of plaintiffs and particularly of plaintiffs’ children and that plaintiffs’ health and the health of plaintiffs ’ children will thereby be impaired; that the presence of these numerous mental defectives in the midst of such a highly residential section of the village of Pelham Manor and their close and intimate contact with the average normal child of plaintiffs will unfortunately and of necessity give rise [130]*130to many unpleasant incidents upon the public streets and thoroughfares of the village between them and plaintiffs’ children whereby breaches of the peace will or may be occasioned and plaintiffs will be thereby harassed and annoyed and will become embroiled and involved in endless litigation both of a civil and criminal nature; that the value of plaintiffs’ real and personal property and their health, safety and welfare will be adversely affected, and that plaintiffs will suffer and will continue to suffer irreparable damage and diminution in the value of their properties. Upon the foregoing and other allegations, plaintiffs seek injunctive relief restraining the defendant from using its property at No. 975 Split Rock Road for its corporate purposes, or as a school or institution for the care and physical or mental development of mentally retarded children, and from using its property for any purpose other than a residence.
By denials in its answer the defendant puts at issue allegations in the complaint which assert its illegal use of its property; denies that plaintiffs’ properties have been and will be diminished in value and that the welfare of plaintiffs’ children will be adversely affected by the defendant’s use of its property. As a separate defense the defendant alleges that for many years prior to the local zoning ordinance in the village of Pelham Manor, the property known as No. 975 Split Rock Road was used as a school for the education and improvement of children who suffered from cardiac disorders which prevented them from attending the public schools of the State of New York; that such use having been made of the property prior to the passage of the zoning ordinance of the Village of Pelham Manor became a nonconforming use; that the defendant purchased its property with the sole intention of operating a school for the instruction of younger children and of children of a tender age who could not, under ordinary circumstances, be admitted to public schools.
Upon the trial at Supreme Court, Special Term, two issues were litigated; (1) whether the plaintiffs had suffered special damages entitling them to maintain the present action to enforce the zoning ordinance; and (2) whether the defendant’s school was a continuation of a legal nonconforming use — within a provision of the zoning ordinance of Pelham Manor which provides : “A change of ownership or tenancy shall not be deemed a discontinuance of a non-conforming use provided the subse[131]*131quent use is identical with, the non-conforming use of the prior owner or tenant,”
On the first issue the Trial Justice made a finding of fact that plaintiffs have sustained or will sustain a diminution of the pecuniary value of their property by reason of the use presently being made of defendant’s property as a school for mentally retarded children. On the second issue the Trial Justice found that the present use made of its premises by the defendant is that of a school for mentally retarded children, whereas the former uses were those of an institution and home for poor children in the country and subsequently as an institution for the care of children suffering from cardiac distorders; and that the present use of the premises by the defendant herein is not the same identical use that was made of the premises by any of the former owners.
At the Appellate Division, where the judgment entered at Special Term was reversed on the law and facts and the complaint was dismissed, the order reversed and set aside the finding- of fact last mentioned above and made new findings as follows: That the health, welfare and safety of the plaintiffs were not adversely affected by the defendant’s use of its premises; that the presence of mentally retarded children on the defendant’s property did not cause hardship to the families of the plaintiffs; that the method of education afforded by the defendant to mentally retarded children did not disturb the peace and quiet of the neighborhood, nor did those children cause damage to plaintiffs’ property or bodily harm to anyone in the neighborhood; that " The education and schooling given by the defendant to teach them [the mentally retarded children] the regular school curriculum enables them to some degree to take their place in society ’ ’; that the present use of it's property by the defendant is the same as one of the uses made of the premises by the former owner.
After reversing and disallowing each conclusion of law made at Special Term: the Appellate Division made conclusions of law as follows: That the Pelham House for Children, Inc. (defendant’s predecessor in title) enjoyed two nonconforming uses- — (1) as an institution for treatment of cardiac children, and (2) as a school ; that there- has been no- abandonment of the nonconforming-uses enjoyed by the prior owner; that a certifi[132]*132cate of occupancy is not required for the continuance of a nonconforming use; that the defendant’s use of the property was a continuance of a nonconforming use; that defendant’s predecessor in title used the premises as a school in conjunction with the use of the premises as a cardiac home for children.
In support of the new findings by the Appellate Division, there is evidence of record that the Pelham Home for Children, Inc., from 1915 until 1950 — in which latter year it sold its property to the present defendant — had accepted from Bellevue Hospital in New York City for convalescent care, children suffering from cardiac ailments.
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Lewis, Ch. J.
The plaintiffs are owners of residential properties in the village of Pelham Manor, Westchester County, which are located either contiguous to, or in the immediate vicinity of, improved property known as No. 975 Split Rock Road, owned by the defendant corporation. The purposes for which the defendant corporation was organized are “ To voluntarily assist the slow and mentally retarded child and to ascertain through study and research, the problems and causes of mental retardation and means for improving the condition of the child; develop a better understanding of, and more wholesome and helpful attitude toward mental retardation; to serve as a clearing house for information about the mentally retarded child, and to voluntarily assist parents of the mentally retarded child, in meeting their problems.”
By their complaint herein plaintiffs allege in substance that it is the purpose of the defendant corporation to conduct on its premises at No. 975 Split Rock Road, in accord with its corporate powers, a school for the mental and physical development of mentally retarded children; that such uses of its property by the defendant are in violation of the zoning ordinance of the Village of Pelham Manor which prohibits the maintenance in that village of an “ institution for the care of invalids or mental defectives that the presence of defendant’s pupils at its school or institution and in the village will of necessity cause close and intimate contact between said mental defectives and plaintiffs and plaintiffs’ children, and that such daily contact and the action and mannerisms of said mental defectives will have a profound, deleterious, depressing effect upon the minds, hearts, emotions and nervous systems of plaintiffs and particularly of plaintiffs’ children and that plaintiffs’ health and the health of plaintiffs ’ children will thereby be impaired; that the presence of these numerous mental defectives in the midst of such a highly residential section of the village of Pelham Manor and their close and intimate contact with the average normal child of plaintiffs will unfortunately and of necessity give rise [130]*130to many unpleasant incidents upon the public streets and thoroughfares of the village between them and plaintiffs’ children whereby breaches of the peace will or may be occasioned and plaintiffs will be thereby harassed and annoyed and will become embroiled and involved in endless litigation both of a civil and criminal nature; that the value of plaintiffs’ real and personal property and their health, safety and welfare will be adversely affected, and that plaintiffs will suffer and will continue to suffer irreparable damage and diminution in the value of their properties. Upon the foregoing and other allegations, plaintiffs seek injunctive relief restraining the defendant from using its property at No. 975 Split Rock Road for its corporate purposes, or as a school or institution for the care and physical or mental development of mentally retarded children, and from using its property for any purpose other than a residence.
By denials in its answer the defendant puts at issue allegations in the complaint which assert its illegal use of its property; denies that plaintiffs’ properties have been and will be diminished in value and that the welfare of plaintiffs’ children will be adversely affected by the defendant’s use of its property. As a separate defense the defendant alleges that for many years prior to the local zoning ordinance in the village of Pelham Manor, the property known as No. 975 Split Rock Road was used as a school for the education and improvement of children who suffered from cardiac disorders which prevented them from attending the public schools of the State of New York; that such use having been made of the property prior to the passage of the zoning ordinance of the Village of Pelham Manor became a nonconforming use; that the defendant purchased its property with the sole intention of operating a school for the instruction of younger children and of children of a tender age who could not, under ordinary circumstances, be admitted to public schools.
Upon the trial at Supreme Court, Special Term, two issues were litigated; (1) whether the plaintiffs had suffered special damages entitling them to maintain the present action to enforce the zoning ordinance; and (2) whether the defendant’s school was a continuation of a legal nonconforming use — within a provision of the zoning ordinance of Pelham Manor which provides : “A change of ownership or tenancy shall not be deemed a discontinuance of a non-conforming use provided the subse[131]*131quent use is identical with, the non-conforming use of the prior owner or tenant,”
On the first issue the Trial Justice made a finding of fact that plaintiffs have sustained or will sustain a diminution of the pecuniary value of their property by reason of the use presently being made of defendant’s property as a school for mentally retarded children. On the second issue the Trial Justice found that the present use made of its premises by the defendant is that of a school for mentally retarded children, whereas the former uses were those of an institution and home for poor children in the country and subsequently as an institution for the care of children suffering from cardiac distorders; and that the present use of the premises by the defendant herein is not the same identical use that was made of the premises by any of the former owners.
At the Appellate Division, where the judgment entered at Special Term was reversed on the law and facts and the complaint was dismissed, the order reversed and set aside the finding- of fact last mentioned above and made new findings as follows: That the health, welfare and safety of the plaintiffs were not adversely affected by the defendant’s use of its premises; that the presence of mentally retarded children on the defendant’s property did not cause hardship to the families of the plaintiffs; that the method of education afforded by the defendant to mentally retarded children did not disturb the peace and quiet of the neighborhood, nor did those children cause damage to plaintiffs’ property or bodily harm to anyone in the neighborhood; that " The education and schooling given by the defendant to teach them [the mentally retarded children] the regular school curriculum enables them to some degree to take their place in society ’ ’; that the present use of it's property by the defendant is the same as one of the uses made of the premises by the former owner.
After reversing and disallowing each conclusion of law made at Special Term: the Appellate Division made conclusions of law as follows: That the Pelham House for Children, Inc. (defendant’s predecessor in title) enjoyed two nonconforming uses- — (1) as an institution for treatment of cardiac children, and (2) as a school ; that there- has been no- abandonment of the nonconforming-uses enjoyed by the prior owner; that a certifi[132]*132cate of occupancy is not required for the continuance of a nonconforming use; that the defendant’s use of the property was a continuance of a nonconforming use; that defendant’s predecessor in title used the premises as a school in conjunction with the use of the premises as a cardiac home for children.
In support of the new findings by the Appellate Division, there is evidence of record that the Pelham Home for Children, Inc., from 1915 until 1950 — in which latter year it sold its property to the present defendant — had accepted from Bellevue Hospital in New York City for convalescent care, children suffering from cardiac ailments. As the children were residents of New York, the board of education of that city furnished at least one teacher for the instruction required for an eight-year grammar school course. Daily classes were conducted from September until June when graduation was held. The capacity of the present facilities is forty-five children, most of whom are ambulatory, attending classes on the first floor of the building.
Although plaintiffs did not dispute evidence of these facts, and of the further fact that the Home was an adjunct to New York City Public School No. 192, the plaintiffs contended that the chief reason for the children being at the Home before 1950 was to provide them with medical care while they were recovering from various heart ailments. Two related contentions are also made in this court: (1) that it was ultra vires for the prior owner to conduct on the property in suit a school for cardiac children when its charter limited its functions to the “ care ” of such children; (2) that the school for cardiac children had been staffed and conducted by the Board of Education of the City of New York, not by the prior owner of the property.
In our view it cannot be argued successfully that the care of convalescent children does not include their education, the fact being that the Legislature has ordained their education to be compulsory (see Education Law, art. 65). As to plaintiffs’ claim that the use to which the prior owner put the property had been a convalescent home and not a school, we think the argument disregards both the statutory requirement last cited above, and the strong public policy of the State which favors the education of all children, however handicapped. Consequently, we agree with the statement in the Appellate Division opinion (281 App. Div. 978) that “ the present use of the prop[133]*133erty as a school for mentally retarded children is a continuation of one of the prior nonconforming uses. At the time of the adoption of the zoning ordinance, the property was used as a convalescent home for cardiac children, an incident of that use being the schooling of the children. Defendant’s present use of the property is a restriction or limitation of the prior nonconforming uses of the property.” (Emphasis supplied.)
We find in the record before us substantial evidence, the weight of which favors the new findings made by the Appellate Division. (N. Y. Const., art. VI, § 7; Civ. Prac. Act, § 605; Harrington v. Harrington, 290 N. Y. 126, 130; Pocket Books, Inc., v. Meyers, 292 N. Y. 58, 61.)
Accordingly, the judgment should be affirmed, with costs.