Nehrbas v. Incorporated Village of Lloyd Harbor
| Decision Date | 21 May 1956 |
| Citation | 1 A.D.2d 1034,152 N.Y.S.2d 28 |
| Parties | Harold A. NEHRBAS and Roberta S. Nehrbas, Respondents-Appellants, v. INCORPORATED VILLAGE OF LLOYD HARBOR, Nevil Ford, as Mayor, Stanley M. Rumbough, Trowbridge Callaway, Charles V. Graham and J. Rich Steers, as Members of the Board of Trustees of the Incorporated Village of Lloyd Harbor, Appellants-Respondents. |
| Court | New York Supreme Court — Appellate Division |
David L. Glickman, Huntington, for defendant-appellants-respondents.
Francis A. McGrath, Brooklyn, for plaintiff-respondents-appellants.
Before NOLAN, P. J., and BELDOCK, MURPHY, UGHETTA and KLEINFELD, JJ.
MEMORANDUM BY THE COURT.
In an action by property owners to declare an amendment to a village zoning ordinance to be void, to restrain the use of premises owned by the village as a municipal headquarters and garage, and to adjudge that said premises are limited to residential use by restrictive covenants in the village's deed, the village and its board of trustees appeal from the judgment, entered after trial, insofar as it restrains the use of the premises as a municipal garage and as quarters for highway employees. The property owners appeal from said judgment insofar as it declares the amendment to be valid, permits the use of the premises as a municipal headquarters, and adjudges that the uses sought to be enjoined are not prohibited by restrictive covenants.
Judgment modified on the law and the facts by striking therefrom the third, fourth, and fifth decretal paragraphs, and by substituting therefor a provision that plaintiffs' second cause of action be dismissed on the merits. As so modified, judgment affirmed, without costs. Findings of fact insofar as they may be inconsistent herewith are reversed and new findings are made as indicated herein.
On the proof in this case, neither the structure in question nor the manner in which the village proposes to use it for storage and maintenance of village vehicles constitutes a nuisance in fact.
The village police perform a governmental function, Augustine v. Town of Brant, 249 N.Y. 198, 204, 163 N.E. 732, 733; Evans v Berry, 262 N.Y. 61, 68, 186 N.E. 203, 205, 89 A.L.R. 387. Highway maintenance is a governmental function, Stiger v. Village of Hewlett Bay Park, 283 App.Div. 827, 129 N.Y.S.2d 38; Markey v. County of Queens, 154 N.Y. 675, 49 N.E. 71, 39 L.R.A. 46; People v. Grant, 306 N.Y. 258, 117 N.E.2d 542; Brush v. Commissioner, 300 U.S. 352, 373, 57 S.Ct. 495, 81 L.Ed. 691. Garbage removal, essential to health and welfare, likewise is a governmental function, 18 McQuillin on Municipal...
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...Point, 199 Misc. 485, 99 N.Y.S.2d 280 (1950); Nehrbas v. Lloyd Harbor, 147 N.Y.S.2d 738 (1955), modified on other grounds, 1 App.Div.2d 1034, 152 N.Y.S.2d 28 (1956), aff'd on other grounds, 2 N.Y.2d 190, 159 N.Y.S.2d 145, 140 N.E.2d 241 (1957); Gardner v. LeBoeuf, 24 Misc.2d 511, 204 N.Y.S.......
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...the City is not bound by the provisions of said ordinance. In support of appellants' argument they cite Nehrbas v. Incorporated Village of Lloyd Harbor, 1 A.D.2d 1034, 152 N.Y.S.2d 28 and Washington Twp. v. Ridgewood Village, 26 N.J. 578, 141 A.2d 308. In each of these cases the court deter......