Opinion
February, 1934.
Judgment reversed on the law and the facts, with costs, and judgment directed in favor of the plaintiff, with costs, barring any claims in so much of plaintiff's property as lies within the 100-foot business district fronting on the Boston Post road so as to permit the use thereof for ordinary business, including public garages and gasoline filling stations but not including factories or nuisances. At the time the instrument of restrictions was filed it was the purpose of defendant Sun Haven Development Corporation that the property described in the complaint lying in division 2 on the map, and the development in connection with its property in division 1 facing on Main street, should be used for garden apartments. Since plaintiff took title, Main street has been materially widened and the traffic upon it increased threefold. Since that time an automobile filling station has been erected approximately 500 feet west of the plaintiff's property on Main street, and adjoining the filling station is a second-hand automobile sales department and immediately adjacent thereto a two-story automobile show room and service station. By amendment of the zoning ordinance of the city of New Rochelle in April of 1927, the erection of apartments on that part of the property located in division 2, in conjunction with division 1, which was permitted by clause IV of the instrument of restrictions and by the zoning ordinance in force at the date thereof, was prohibited. The combination of the zoning ordinance effective when plaintiff bought the property, the instrument of restrictions and the zoning law as amended, precludes the use of a part of the property for any practical purpose, since it appears that the only use to which the property can profitably be put is in connection with automobile service. The proof is to the effect that no substantial damage will be suffered by the defendants from the granting of the relief sought. A finding to that effect will be made. Findings 14 and 15 are reversed, and new findings will be made. Hagarty, Carswell, Scudder and Tompkins, JJ., concur; Lazansky, P.J., dissents and votes to affirm on the ground stated by Witschief, J., at Special Term, that there has been no such change in the nature of the locality which makes it impracticable to use the property profitably, if the covenant be enforced. Settle order on notice.