Marcus v. Vill. of Mamaroneck

CourtNew York Court of Appeals
Writing for the CourtFINCH
Citation28 N.E.2d 856,283 N.Y. 325
Decision Date24 July 1940
PartiesMARCUS et al. v. VILLAGE OF MAMARONECK et al.

283 N.Y. 325
28 N.E.2d 856

MARCUS et al.
v.
VILLAGE OF MAMARONECK et al.

Court of Appeals of New York.

July 24, 1940.


Appeal from Supreme Court, Appellate Division, Second Department.

Action by Frances F. Marcus and another against the Village of Mamaroneck and others to enjoin defendants, other than the Village of Mamaroneck, from operating or permitting the operation of a beach club upon certain property in the village in alleged violation of a zoning ordinance, and to enjoin the village from issuing a license to permit dancing on premises where food and drink were sold. From a judgment entered on an order of the Appellate Division, Second Department, 258 App.Div. 328, 16 N.Y.S.2d 626, reversing a judgment of Special Term for plaintiffs on the law and facts and dismissing the complaint, plaintiffs appeal.

Judgment of the Appellate Division reversed, and that of the Special Term affirmed.

[28 N.E.2d 857]

J. Henry Esser, of Mount Vernon, for appellants.

Henry E. Stohldreier and Walter W. Westall, both of White Plains, for respondents.


Harry B. Kurzrok, amicus curiae.

FINCH, Judge.

This action is brought by the owners of one-family private dwellings to restrain violations of the Village Zoning Law. Special Term gave judgment for plaintiffs. The Appellate Division, Second Department, reversed Special Term on the law and facts, and dismissed the complaint, making certain new findings. The village of Mamaroneck, although named as a defendant, has not appealed from the judgment, and hereafter reference to defendants will be taken to mean the owners of a certain ‘Beach club’ located in a Residence ‘A’ Zone, in which are located the properties of plaintiffs.

The overwhelming weight of the evidence shows the following facts: In 1924 defendants, or their predecessor in interest, were operating a so-called ‘Beach club’ as a business for profit. In 1929 the president of the corporation wrote to the then proprietors, ‘As there is no club and never has been any club, no revenue tax was collectible.’ In any event, it was stipulated in the record that the ‘Beach club’ was a non-conforming use at all times in this district.

In 1925 zoning ordinances were adopted which established this district as a Residence

[28 N.E.2d 858]

‘A’ District. This in general prohibited the erection or use of any building except as a detached or semi-detached one or two family dwelling, but exempted non-conforming buildings and uses. In addition, no existing building devoted to a non-conforming use may be altered at a cost for the alteration of a sum exceeding fifty percent of the assessed value of the lot and building. A Board of Appeals was given authority in each particular case, after public notice and hearing and subject to appropriate conditions and safeguards, to vary the regulations in harmony with their general purpose and intent so as to permit the enlargement of a non-conforming use or building in excess of fifty per cent of the assessed value of the building enlarged. The zoning ordinance also provided for ‘certificates of compliance and occupancy’ so that hereafter no person shall use or occupy any building which has been altered ‘* * * until the Building Inspector shall have issued a certificate of occupancy stating that the building and premises comply with the provisions of these regulations.’

In 1928 the structural facilities of the club were greatly altered and enlarged pursuant to a building permit which was valid on its face. This building permit, however, had indorsed on its face that all provisions of the zoning ordinances should be complied with in the alteration. The expense of the alteration was not less than $44,000, while the assessed valuation of the lots and buildings did not exceed $21,400. Although the then proprietors who were altering the buildings testified that they knew they were engaged in an unlawful undertaking, in making alterations at a cost of at least $44,000, when the limit fixed by law was one-half of the assessed valuation, or approximately $10,700, no application was made to the Board of Appeals for a variance. In addition, it is uncontroverted that no certificate of occupancy has been issued.

Special Term granted judgment for plaintiffs, restraining the activities of defendants except as measured by the use which was made of the premises as of March 2, 1925, and further providing that if application for a certificate of occupancy be not made and obtained within ninety days, plaintiffs might apply at the foot of the judgment to restrain defendants altogether until such certificate is obtained.

...

To continue reading

Request your trial
130 practice notes
  • Harbison v. City of Buffalo
    • United States
    • New York Court of Appeals
    • 25 d3 Junho d3 1958
    ...property (Koeber v. Bedell, 280 N.Y. 692, 21 N.E.2d 200; Cordes v. Moore, 308 N.Y. 761, 125 N.E.2d 112; Marcus v. Village of Mamaroneck, 283 N.Y. 325, 28 N.E.2d 856; Town of Hempstead v. Goldblatt, 4 A.D.2d 970, 168 N.Y.S.2d 609, motion for leave to appeal denied 4 N.Y.2d 674, 171 N.Y.S.2d ......
  • Williamson v. Stallone
    • United States
    • United States State Supreme Court (New York)
    • 30 d5 Abril d5 2010
    ...of this equitable28 Misc.3d 756defense is delay prejudicial to905 N.Y.S.2d 754the opposing party ( Marcus v. Village of Mamaroneck, 283 N.Y. 325, 332, 28 N.E.2d 856)"]. In the Barabash case, the court rejected the laches defense where the respondent had spent distributed estate funds b......
  • Suffolk Housing Services v. Town of Brookhaven
    • United States
    • United States State Supreme Court (New York)
    • 20 d1 Junho d1 1977
    ...have a legal or equitable interest in land have standing to challenge a zoning restriction (see, e.g., Marcus v. Village of Mamaroneck, 283 N.Y. 325, 28 N.E.2d 856; Haber v. Board of Estimate of City of New York, 33 A.D.2d 571, 305 N.Y.S.2d 520; Manor Woods Association v. Randol, 29 A.D.2d ......
  • Bradley v. O'Hare, No. 24948
    • United States
    • New York Supreme Court Appellate Division
    • 14 d2 Junho d2 1960
    ...who has been prejudiced (Weiss v. Mayflower Doughnut Corp., 1 N.Y.2d 310, 318, 152 N.Y.S.2d 471, 476; Marcus v. Village of Mamaroneck, 283 N.Y. 325, 331-332, 28 N.E.2d 856, 859; 2 Pomeroy's Equity Jurisprudence [5th ed.], § 419d). UMW may have been prejudiced by the delay. It was financing ......
  • Request a trial to view additional results
130 cases
  • Harbison v. City of Buffalo
    • United States
    • New York Court of Appeals
    • 25 d3 Junho d3 1958
    ...property (Koeber v. Bedell, 280 N.Y. 692, 21 N.E.2d 200; Cordes v. Moore, 308 N.Y. 761, 125 N.E.2d 112; Marcus v. Village of Mamaroneck, 283 N.Y. 325, 28 N.E.2d 856; Town of Hempstead v. Goldblatt, 4 A.D.2d 970, 168 N.Y.S.2d 609, motion for leave to appeal denied 4 N.Y.2d 674, 171 N.Y.S.2d ......
  • Williamson v. Stallone
    • United States
    • United States State Supreme Court (New York)
    • 30 d5 Abril d5 2010
    ...of this equitable28 Misc.3d 756defense is delay prejudicial to905 N.Y.S.2d 754the opposing party ( Marcus v. Village of Mamaroneck, 283 N.Y. 325, 332, 28 N.E.2d 856)"]. In the Barabash case, the court rejected the laches defense where the respondent had spent distributed estate funds before......
  • Suffolk Housing Services v. Town of Brookhaven
    • United States
    • United States State Supreme Court (New York)
    • 20 d1 Junho d1 1977
    ...have a legal or equitable interest in land have standing to challenge a zoning restriction (see, e.g., Marcus v. Village of Mamaroneck, 283 N.Y. 325, 28 N.E.2d 856; Haber v. Board of Estimate of City of New York, 33 A.D.2d 571, 305 N.Y.S.2d 520; Manor Woods Association v. Randol, 29 A.D.2d ......
  • Bradley v. O'Hare, No. 24948
    • United States
    • New York Supreme Court Appellate Division
    • 14 d2 Junho d2 1960
    ...who has been prejudiced (Weiss v. Mayflower Doughnut Corp., 1 N.Y.2d 310, 318, 152 N.Y.S.2d 471, 476; Marcus v. Village of Mamaroneck, 283 N.Y. 325, 331-332, 28 N.E.2d 856, 859; 2 Pomeroy's Equity Jurisprudence [5th ed.], § 419d). UMW may have been prejudiced by the delay. It was financing ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT