Opinion
November 23, 1926.
Van Doren, Conklin McNevin [ Edward S. Bentley of counsel], for the plaintiff.
Erastus J. Parsons, for the defendants Bemak Lehman, Inc., and Bemak.
Isadore P. Eisenberg, for the defendant Schlosser.
This action is one for a permanent injunction restraining the defendants from the use of a certain driveway approaching a public garage situated just outside the village of Great Neck Estates, as in violation of a zoning ordinance of that village. The defendants move to dismiss the complaint of the plaintiff, because it fails to state facts sufficient to constitute a cause of action; and, if that motion should be denied, then that the complaint be divided into two causes of action, one for violation of the ordinance, and the other for the maintenance of the use of the driveway referred to, as detrimental to the health and safety of the neighborhood in which it is located.
This complaint sets out the enactment of the zoning ordinance, that it is still in effect, that the premises of the defendants Isaac J. Bemak and Josephine K. Bemak are located in the territory of the plaintiff restricted to private residences, and that the driveway is used for business purposes. Certain other facts are also alleged, tending to show that the use to which defendants Bemak's property is put is an annoyance to others owning property in the residence zone.
These last allegations might be considered as surplusage and incident to the main cause of action upon which the plaintiff relies. Since they do not interfere with the main cause of action, defendants' motion to dismiss the complaint, as well as the motion to compel the separation thereof into two causes are both denied. Contemporaneously with the hearing of defendants' motions, plaintiff moves for a temporary restraining order against the defendants' use of the premises for the purposes alleged, pending the trial of the action.
The facts as presented on the application for an injunction are not seriously in dispute. The defendant Murray Schlosser is the owner of a public garage situated entirely outside the village. The defendants Isaac J. Bemak and Josephine K. Bemak are the owners of, and occupy as a private residence, property within the village of Great Neck Estates, which abuts the rear of the garage operated by the defendant Murray Schlosser. Prior to the commencement of this action the defendants Bemak maintained upon the rear of the premises occupied by them as a residence a private one-car garage.
By agreement between the defendants Bemak and the defendant Schlosser an additional entrance was made in the rear of the garage occupied by the defendant Schlosser, and permission given to the said defendant to use the driveway over the property of the defendants Bemak for the convenience of Schlosser's customers. A physical connection was made between Schlosser's garage and the Bemaks' driveway. Since the making of such agreement between the defendant Schlosser and the defendants Bemak, the customers of the defendant Schlosser have used this driveway as an additional entrance for ingress and egress.
Plaintiff asserts that the driveway is not only used for ingress and egress, but for the purpose of storing automobiles and doing repairs upon them. This is disputed by the defendants, and raises an issue of fact upon that feature of the situation. The interesting question involved is as to whether the owner of a garage located entirely outside the village may be restrained from permitting his customers to drive into his garage and out of it, over a driveway connected with a private residence in a zone within the village, which is restricted to residence uses.
The issue is also raised as to the legality of the passage of the zoning ordinance. The zoning ordinances of municipalities are of recent origin. Their legality has repeatedly been upheld, so that there is no longer any question as to the right of municipalities to enact and enforce such ordinances.
The main question here involved, however, has not, as far as I have been able to discover, been directly passed upon. The case of Matter of Barker v. Boettger ( 124 Misc. 461) involved the right to erect a garage partly upon property in one zone and partly upon property in another. The court permitted its erection in that manner, but restricted its use to the occupants of a certain apartment house with which it was connected.
In my judgment, plaintiff's right to the ultimate relief it seeks is not so clear as to entitle it to a temporary restraining order pending the trial of the action.