Town of Somers v. Camarco

284 A.D. 979, 135 N.Y.S.2d 42, 1954 N.Y. App. Div. LEXIS 4288

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1954
• Status: Published

Opinion

Action to enjoin defendants, for lack of a permit as provided for in a zoning ordinance, from excavating sand and gravel and using structures in connection therewith, and for other relief. Defendants counterclaimed for judgment declaring the provisions invoked by plaintiff to be void as in violation of their vested rights acquired prior to enactment of the zoning ordinance which had placed the parcels in a residence use district. Plaintiff appeals from a judgment for defendants, entered after trial, and from an order denying its motion for a new trial. Judgment modified on the law by striking therefrom the last ordering paragraph, which enjoins plaintiff from making any application to any court based upon the use of the premises contrary to an enumerated provision of the ordinance. The findings of fact are affirmed. As so modified, judgment unanimously affirmed, without costs. Order denying motion for new trial affirmed, without costs. At the trial the parties presented but one issue of fact, namely, whether the nonconforming use of the easterly parcel occurred prior to enactment of the ordinance. Plaintiff even objected to proof of operation of the westerly parcel inasmuch as there was no dispute as to prior operation thereon. The parties are bound by their own conduct defining the issues in the action and limiting the scope of the proof. The restraining provision in the judgment is inappropriate. No application of plaintiff can be barred in advance of its presentation (Matter of Robinson, 280 App. Div. 953, 954). Present — Nolan, P. J., Wenzel, MacCrate, Beldock and Murphy, JJ.