Dellwood Dairy Co. v. City of New Rochelle , 184 N.Y.S.2d 656 ( 1959 )

Appeal (1) from an order granting respondent’s motion for summary judgment striking out the answer and denying appellants’ cross motion for summary judgment or for judgment on the pleadings dismissing the complaint, and (2) from the judgment entered thereon striking out the answer. Respondent brought this action for a judgment declaring, inter alia, that the maintenance and operation by respondent of coin-operated milk-vending machines in residential apartment buildings in areas of the City of New Rochelle zoned for residential use do net violate the Zoning Law of the City of New Rochelle, and to enjoin appellants from interfering with respondent’s maintenance and operation of the milk-vending machines. Order reversed, with $10 costs and disbursements, respondent’s motion denied, appellants’ cross motion for summary judgment granted, and judgment vacated. By means of the coin-operated machines a commercial enterprise for profit is being conducted in that a sale of milk for money is thereby effected. That is not a use accessory to the residence use but is itself strictly a business Use. Beldock, Acting P. J., Murphy, Ughetta and Hallinan, JJ., concur; Kleinfeld, J., dissents and votes to affirm on the opinion of the Special Term.