Opinion
January 30, 1956
Present — Nolan, P.J., Wenzel, Beldock, Ughetta and Hallinan, JJ.
In an action to declare a zoning ordinance unconstitutional, insofar as it limits the structures which may be erected on respondents' property to detached single family houses and excludes the erection of garden type apartments, and for injunctive relief, the appeal is from a judgment in favor of respondents, after trial. Judgment modified on the law and the facts by deleting therefrom the second ordering paragraph, which grants injunctive relief against any application in any court based upon the use of the premises for garden type apartment houses. As so modified, judgment unanimously affirmed, with costs to respondents. In our opinion, on the record presented, the determination by the Special Term that the ordinance restricts respondents' property to a use for which it is not adapted, and all other findings contained in the Special Term's decision, are supported by substantial evidence. In our opinion, however, the injunctive provisions of the judgment are inappropriate. Appellants should not be denied the right to apply to the courts for relief with respect to any future dispute which may arise between the parties, concerning the use of the subject property. (Cf. Town of Somers v. Camarco, 284 App. Div. 979, affd. 308 N.Y. 537.)