Opinion
July 20, 1982
Motion by appellants for reargument of the appeal from a judgment of the Supreme Court, Nassau County, entered December 19, 1980, which was affirmed by order of this court dated December 28, 1981. Motion for reargument granted, and upon reargument, order and decision, both dated December 28, 1981 ( 85 A.D.2d 692), recalled and vacated and the following decision is substituted therefor: In an action, inter alia, to declare section 183-5 of the Code of the Town of Hempstead unconstitutional, plaintiffs appeal from a judgment of the Supreme Court, Nassau County (Pittoni, J.), entered December 19, 1980, which, after a nonjury trial, sustained the constitutionality of the afore-mentioned ordinance. Judgment reversed, without costs or disbursements, and matter remitted to Trial Term for further proceedings consistent herewith. The challenged ordinance is a restriction imposed by one municipal corporation upon individuals, not of that municipal corporation, who desire to carry on a lawful business within the limits of the municipal corporation, as contemplated by section 80 Gen. Mun. of the General Municipal Law. The ordinance is thus void unless it can be shown to be necessary for the proper regulation of that business. Moreover, the burden of showing necessity is upon the municipal corporation (see Wharram v. City of Utica, 56 N.Y.2d 733). Trial Term failed to render a decision on this issue. Therefore, this matter must be remitted to Trial Term for the purpose of determining whether the ordinance in question is invalid in light of section 80 Gen. Mun. of the General Municipal Law. Lazer, J.P., Weinstein, O'Connor and Thompson, JJ., concur.