Opinion
November 19, 1951.
Appeal from an order denying appellant's motion to punish respondent for contempt of court for alleged violation of the provision of a judgment entered July 26, 1948, in that he permitted certain premises located in a Residence B District of appellant village to be used as a parking space. Respondent, in violation of appellant's zoning ordinance, had constructed a parking space on the premises in question, which adjoined other premises owned by him, improved with retail stores and located in a business zone. The decree of July 26, 1948, was made in an action brought by appellant against respondent and the tenants of the stores, and enjoined them from "using or causing or permitting the premises in the Residence B District described in the complaint herein, or any part thereof, to be used as a parking space." Thereafter respondent notified his tenants of the injunction and erected three signs in the parking space which prohibited parking in the area within the residence zone and notified drivers that the only permissible parking space was that against the rear wall of the stores, which was within the business zone. The signs did not physically obstruct use of the parking space in the residence zone, and it is uncontradicted that they were disregarded and that automobiles continued to be parked there daily. No further effort was made by respondent to deny the use of that space for parking, from the date of the judgment to the date of this application, some two and one-half years later. Order reversed on the law and the facts, with $10 costs and disbursements, motion granted, with $10 costs, and the matter remitted to the Special Term to fix punishment for the contempt. In our opinion respondent "permitted" the premises in question to be used as a parking space, since he suffered such use, or tacitly consented thereto, by failing to adopt measures effective to prevent it, although such measures were within his power and duty. (Cf. People v. Knapp, 206 N.Y. 373, 384; People ex rel. Price v. Sheffield Farms Co., 180 App. Div. 615, affd. 225 N.Y. 25, and People v. Harrison, 183 App. Div. 812. ) The fact that the judgment did not specifically require respondent to erect a fence or barrier did not constitute a holding that he might fail to adopt such an obvious measure with impunity in the event that other measures should prove ineffective. Respondent was required to take such reasonable measures as would render the decree effective. (See Mayor of City of New York v. New York Staten Is. Ferry Co., 64 N.Y. 622, 624.) Nolan, P.J., Johnston, Sneed and MacCrate, JJ., concur; Adel, J., dissents and votes to affirm. [See post, p. 792.]