Opinion
May 26, 1958
Louis E. Klein for plaintiffs.
Louis Cohen for Bayswater Park, Inc., and another, defendants.
Motion by plaintiffs for a temporary injunction restraining the defendants from advertising the projected operation of a certain country day school as a day camp and from operating said day school as a day camp.
Plaintiffs are homeowners residing adjacent or in the neighborhood of defendants' property. The premises of all parties hereto are zoned as "E-1", which restricts its use to one-and two-family private dwellings. Defendants sought and obtained a variance permitting them to use their property as an "academic school". They are now advertising for students for the summer season of 1958. Plaintiffs claim that the defendants intend to operate a summer day camp and not a school.
"Designating an object by some particular word does not change its nature, or make it something other than what it truly is. The form of the vehicle used does not control the nature of the enterprise; that is determined by the kind of services performed, and the manner in which it is conducted." ( International Ry. Co. v. Barone, 246 App. Div. 450, 454.) Defendants apparently recognize this principle, for in their opposing affidavits they say: "27. Whether a particular activity is a day school or a day camp can be determined by the type of staff, the nature of the curriculum and the emphasis placed on the activities."
A brochure issued by the defendants bears the cover title "A Summer Adventureland for Boys and Girls". On the centerfold of said brochure is a map showing the location of various activities to be conducted. The activities listed are:
Boating Baseball (two fields) Basketball (two courts) Handball Corral Archery Putting green Volleyball (three courts) Ping Pong (two areas) Goal-Hi Golf cages Paddle Tennis Tennis Swimming pool Softball Nursery playroom Nursery school Green House Theatre Wing Dining Room Arts and Crafts Office
Along the left and right margins of the centerfold appears a list of activities as follows:
BOATING
Canoeing Rowing Sailing Water Skiing Motor Boating
SWIMMING
Diving Red Cross Instruction Swimming Instruction
BASEBALL
Volleyball Basketball Handball Indoor Roller Skating
GOLF
Tennis Badminton Paddle Tennis Ping Pong Riding Archery Fencing Shuffleboard
THEATRE ARTS WORKSHOP
Dramatics Dance Music
Singing Stage-craft Rhythm Band
Puppetry Square and Folk Dancing
ARTS AND CRAFTS
Sketching Metal Work Woodwork
Ceramics Painting
NATURE
Gardening Animals Pioneer projects
Council Fires Barbecue
PHOTOGRAPHY
LIBRARY
TUTORING
(by special arrangement) Languages Mathematics Science
It appears, therefore, that academic subjects are available only by special arrangement, and not as part of the regular curriculum. Judging by defendants' advertising, it is evident that the project which they intend to operate is a summer day camp and not a school. Such use is not authorized by the present zoning of the property nor by the variance issued to the defendants.
The motion is, accordingly, granted to the extent of enjoining defendants from operating a summer day camp. Bond will be fixed in the sum of $1,000.
Settle order.