Hyperlawhypertext legal databasebeta Dellwood Dairy Co. v. City of New Rochelle 7 N.Y.2d 374

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Dellwood Dairy Co. v. City of New Rochelle

7 N.Y.2d 374 Court N.Y. Decision date 1960-03-03 English

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Dellwood Dairy Co., Inc., Appellant, v. City of New Rochelle et al., Respondents.
Argued January 21, 1960;
decided March 3, 1960.
Jules H. Enrich, Morris Golub and Sydney C. Winton for appellant.
I. The operation by plaintiff of a milk vending machine in apartment buildings in New Rochelle does not violate the New Rochelle Zoning Ordinance. It does not in any way interfere with the fundamental residential nature of the buildings. II. The operation of plaintiff’s milk vending machines in apartment buildings constitutes an “accessory use” and as such is expressly permitted by the ordinance. (American Locker Co. v. City of New York, 308 N. Y. 264 ; Tarr v. City of New York, 12 Misc 2d 796 ; Matter of Flagg v. Murdock, 172 Misc. 1048 ; Matter of Packer v. Board of Stds. & Appeals of City of N. Y., 271 App. Div. 874 ; MacMillan v. McCaffrey, 201 Misc. 574 ; Matter of 140 Riverside Drive v. Murdock, 276 App.
p. 375
Div. 550 ; Matter of Presnell v. Leslie, 3 N Y 2d 384 ; Zahn v. Newark Bd. of Adjustment, 45 N. J. Super. 516 .) III. The ordinance contains no prohibition against the operation of milk vending machines in apartment buildings. (Matter of 44 E. 102nd St. Corp. v. Murdock, 285 N. Y. 298 ; Matter of Monument Garage Corp. v. Levy, 266 N. Y. 339 .) IV. If the zoning ordinance were given the meaning urged by defendants, it would be invalid. (American Locker Co. v. City of New York, 308 N. Y. 264 ; Peoples Dairy v. City of Lackawanna, 1 Misc 2d 700 .)
Murray C. Fuerst, Corporation Counsel (Herman D. Schmier of counsel), for respondents.
The use of premises in a residence-zoned area within the City of New Bochelle for the sale of milk by means of coin-operated vending machines is not a permitted use under the zoning ordinance nor is it accessory to the main permitted uses and thereby violates the provisions of the zoning ordinance. (Matter of 140 Riverside Drive v. Murdock, 276 App. Div. 550 ; Matter of Presnell v. Leslie, 3 N Y 2d 384 ; American Locker Co. v. City of New York, 308 N. Y. 264 ; Matter of Packer v. Board of Stds. & Appeals of City of N. Y., 271 App. Div. 874 ; MacMillan v. McCaffrey, 201 Misc. 574 ; Peoples Dairy v. City of Lackawanna, 1 Misc 2d 700 .)

The sole issue is whether the presence of a coin-operated milk vending machine, installed in the basement of an apartment house located in a restricted residential zone, violates the Zoning Law of the City of New Bochelle, which prohibits any business in B-5 District except ‘ ‘ Accessory uses customarily incident to the above uses ” (New Bochelle Zoning Law, art. VII, § 1, subd. [e]). An “ accessory use ” is defined as “ a use customarily incidental and subordinate to the main use conducted on the lot, whether such accessory use is to be conducted in a main or accessory building ” (art. XI). We think it does not.

As noted in Special Term, the use of a milk vending machine is but a different method of doing a traditional service for a householder. It is a common experience that new times bring not only new problems but new ways and means of dealing with old ones. To illustrate, automation is now being turned to as a means of reducing labor costs not only in the industrial and commercial fields, but also in the domestic. The presence of a

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milk vending machine, such as the ones used here, in the basement of an apartment building which is not accessible to the general public, can have little, if any, adverse application to the character of the residential neighborhood. It is not commercialism such as ordinarily disturbs the quiet and peaceful enjoyment of the home but, rather, the convenient substitute for the route man. It is a device designed to perform “ a use customarily incidental and subordinate ” to the normal enjoyment of an apartment house.

The judgment of the Appellate Division should be reversed and that of Special Term reinstated, with costs in this court and in the Appellate Division.

Chief Judge Desmond and Judges Dye, Fuld, Froessel, Van Voorhis, Burke and Foster concur.

Judgment reversed, etc.

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