Opinion
March 8, 1954.
Present — Nolan, P.J., Adel, Wenzel, Beldock and Murphy, JJ.
In a summary proceeding to recover possession of real property leased by respondent to appellant, because of the use of the premises by appellant's subtenant for purposes not permissible under respondent's zoning ordinance, the appeal is from a final order of the County Court, Westchester County, in favor of respondent. Order unanimously affirmed, with costs. Appellant failed to establish that the zoning ordinance, insofar as it affects the demised premises, is unconstitutional. (Cf. Rodgers v. Village of Tarrytown, 302 N.Y. 115, 121, and cases cited therein.) Respondent may not waive the illegal use and, under the circumstances disclosed, is not estopped from asserting such illegality. (Cf. Matter of A.C. Nurseries v. Brady, 278 App. Div. 974; 47 East 74th St. Corp. v. Simon, 188 Misc. 885; 2 West 32nd St. Corp. v. Levine, 199 Misc. 1020, and Commissioner of Banks v. Cosmopolitan Trust Co., 253 Mass. 205, 218.)