Rogers v. Association of Retarded Children, Inc. , 120 N.Y.S.2d 329 ( 1953 )

In an action by property owners, claiming special damage, to restrain defendant’s use of its property as a school for mentally retarded children in alleged violation of a village zoning ordinance, defendant appeals from a judgment entered in favor of plaintiffs after trial. Judgment reversed on the law and the facts, with costs, and complaint dismissed, without costs. Findings of fact and conclusions of law inconsistent herewith are reversed and new findings and conclusions will be made. We agree with the Special Term that plaintiffs may maintain this action because there is proof that their property was materially damaged in pecuniary value by reason of defendant’s use of the property. (Marcus v. Village of Mamaroneck, 283 N. Y. 325, 333.) However, we are of the opinion that the present use of the property as a school for mentally retarded children is a continuation of one of the prior nonconforming uses. At the time of the adoption of the zoning ordinance, the property was used as a convalescent home for cardiac children, an incident of that use being the schooling of the children. Defendant’s present use of the property is a restriction or limitation of the prior nonconforming uses of the property. Nolan, P. J., Carswell, Adel and Beldock, JJ., concur; Wenzel, J., dissents and votes to affirm. Settle order on notice.