People v. Feinberg
| Decision Date | 29 October 1965 |
| Citation | 48 Misc.2d 187,264 N.Y.S.2d 424 |
| Parties | PEOPLE of the State of New York, Plaintiff, v. Harold FEINBERG, Defendant. |
| Court | New York City Court |
Leo A. Larkin, New York City, and Wilmot A. Archibald, Asst. Corporation Counsel, for the People.
Shatzkin & Cooper, New York City, for defendant.
Defendant, the agent of an apartment house in a residential district, was ordered by the Building Department of the City of New York to discontinue the use of a vending machine in the basement of said premises. This non-operated machine, known as a 'grocerette', was placed adjacent to a milk vending machine, and dispenses:
Bread
'Junior Pies'
'Donuts'
Chocolate Chip Snaps
Eggs
Three types of soda drinks
Defendant refused to comply with the order on the ground that the 'grocerette' did not violate the residential zoning resolutions which permit 'accessory uses' to the main purpose of providing residences. Section 12-10 of the Zoning Resolutions of the City of New York defines 'accessory uses' as:
'(a) is a use conducted on the same zoning lot as the principal use to which it is related * * * and
'(b) is a use which is clearly incidental to, and customarily found in connection with, such principal use; and
'(c) is either in the same ownership as such principal use, or is operated and maintained on the same zoning lot substantially for the benefit or convenience of the owners, occupants, employees, customers or visitors of the principal use.'
Defendant points out that under this or similar statutes milk vending machines are considered an 'accessory use' as a sort of mechanized milkman which has supplanted the flesh and blood route salesman of yesteryears. Tarr v. City of New York, 12 Misc.2d 796, 177 N.Y.S.2d 466. Dellwood Dairy Co., Inc. v. City of New Rochelle, 7 N.Y.2d 374, 197 N.Y.S.2d 719, 165 'Accessory use' has also been held to encompass machines dispensing bread and bakery products. People v. Page, 36 Misc.2d 840, 235 N.Y.S 2d 518.
Defendant states this is a 'test case', and we are told that other cases hinge on the outcome. Unfortunately, the test has been brought in the wrong forum.
The Defendant could have contested the validity of the order by appearing it to the Board of Standards and Appeals under Section 666, subd. 6 of the New York City Charter. Instead, the case is presented to a Criminal Court by virtue of Defendant's refusal to comply with the order of the Building Department.
The power of a trial court to review the legality of a Departmental order in prosecution for its violation is extremely limited. We believe that where the order is manifestly illegal on its face, a Criminal Court is not a complete rubber stamp to convict a defendant. Thus, Judge Frossel stated in 109 Beach 29th Street Corp. v. Archer, 188 Misc. 769, 771, 67 N.Y.S.2d 916, 918:
'While it is true that resort to the Board of Standards and Appeals to review an order of the Fire Commissioner is ordinarily the remedy of...
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People v. Marchetta
...This relief is not the type this Court is empowered to grant (cf. People v. Salzone, 98 Misc.2d 131, 413 N.Y.S.2d 547; People v. Feinberg, 48 Misc.2d 187, 264 N.Y.S.2d 424). The jurisdiction of the Criminal Court is restricted to hearing, trying and determining criminal charges, specificall......
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People v. NYRA
...the defendants' unenviable position as a mitigating factor or sentenced the defendants to nominal fines. See e.g. People v. Feinberg, 48 Misc.2d 187, 189, 264 N.Y.S.2d 424 People v. Looe, supra, 51 Misc.2d at 839, 274 N.Y.S.2d 480. It is well documented that in the 1960s and 1970s courts ex......
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People v. Martin, 2006 NY Slip Op 52082(U) ( 10/23/2006)
...or superimpose its judgment or preference interpretation of the zoning regulations for those of the Commissioner of Buildings); People v. Feinberg, 48 Misc 2d 187 (Criminal Ct., Bronx Co., 1965) (it is not for a criminal court to review a municipal order which is valid on its face when defe......
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People v. Looe
...N.Y.S.2d 744. People v. Gillman, 6 A.D.2d 899, 177 N.Y.S.2d 623. People v. Ludwig, 262 A.D. 912, 28 N.Y.S.2d 831. People v. Feinberg, 48 Misc.2d 187, 264 N.Y.S.2d 424 (1965). Adequate review of these orders could be had before the Board of Standards and Appeals under section 666, Sub. 6, Ne......