Appellate Division of the Supreme Court of New York, 1954

Village of Tarrytown v. Tappan Airways, Inc.

Village of Tarrytown v. Tappan Airways, Inc.
Appellate Division of the Supreme Court of New York · Decided March 8, 1954
283 A.D. 803; 128 N.Y.S.2d 509; 1954 N.Y. App. Div. LEXIS 5373
Village of Tarrytown v. Tappan Airways, Inc.

Opinion of the Court

In a summary proceeding to recover possession of real property leased by respondent to appellant, because of the use of the premises by appellant’s subtenant for purposes not permissible under respondent’s zoning ordinance, the appeal is from a final order of the County Court, Westchester County, in favor of respondent. Order unanimously affirmed, with costs. Appellant failed to establish that the zoning-ordinance, insofar as it affects the demised premises, is unconstitutional. (Cf. Rodgers v. Village of Tarrytown, 302 N. Y. 115, 121, and cases cited therein.) Respondent may not waive the illegal use and, under the circumstances disclosed, is not estopped from asserting such illegality. (Cf. Matter of A. C. Nurseries v. Brady, 278 App. Div. 974; 47 East 74th St. Corp. v. Simon, 188 Mise. 885; 2 West 32nd St. Corp. v. Levine, 199 Mise. 1020, and Commissioner of Banks v. Cosmopolitan Trust Co., 253 Mass. 205, 218.) Present ■ — Nolan, P. J., Adel, Wenzel, Beldock and Murphy, JJ.

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