Document Info

Judges: Conroy

Filed Date: 5/26/1958

Status: Precedential

Modified Date: 10/19/2024

  • James J. Conroy, J.

    Motion by plaintiffs for a temporary injunction restraining the defendants from advertising the projected operation of a certain country day school as a day camp and from operating said day school as a day camp.

    Plaintiffs are homeowners residing adjacent or in the neighborhood of defendants’ property. The premises of all parties hereto are zoned as ‘ ‘ E-l ’ ’, which restricts its use to one- and two-family private dwellings. Defendants sought and obtained a variance permitting them to use their property as an ‘ academic school ’ ’. They are now advertising for students for the summer season of 1958. Plaintiffs claim that the defendants intend to operate a summer day camp and not a school.

    Designating an object by some particular word does not change its nature, or make it something other than what it truly is. The form of the vehicle used does not control the nature of the enterprise; that is determined by the kind of services performed, and the manner in which it is conducted.” (International Ry. Co. v. Barone, 246 App. Div. 450, 454.) Defendants apparently recognize this principle, for in their opposing affidavits they say: ‘ ‘ 27. Whether a particular activity is a day school or a day camp can be determined by the type of staff, the nature of the curriculum and the emphasis placed on the activities.”

    *1018A brochure issued by the defendants bears the cover title “ A Summer Adventureland for Boys and Girls”. On the centerfold of said brochure is a map showing the location of various activities to be conducted. The activities listed are:

    Boating

    Baseball (two fields)

    Basketball (two courts)

    Handball

    Corral

    Archery

    Putting green

    Volleyball (three courts)

    Ping Pong (two areas)

    Goal-Hi

    Golf cages

    Paddle Tennis

    Tennis

    Swimming pool

    Softball

    Nursery playroom

    Nursery school

    Green House

    Theatre Wing

    Dining Room

    Arts and Crafts Office

    Along the left and right margins of the centerfold appears a list of activities as follows:

    BOATING

    Canoeing

    Rowing-

    Sailing

    Water Skiing

    Motor Boating

    SWIMMING

    Diving

    Red Cross Instruction

    Swimming Instruction

    BASEBALL

    Volleyball

    Basketball

    Handball

    Indoor Roller Skating

    *1019GOLF

    Tennis

    Badminton

    Paddle Tennis

    Ping Pong

    Riding-

    Archery

    Fencing

    Shuffleboard

    THEATRE ARTS WORKSHOP

    Dramatics

    Dance

    Music

    Singing

    Stage-craft

    Rhythm Band

    Puppetry

    Square and Folk Dancing

    ARTS AND CRAFTS

    Sketching

    Metal Work

    Woodwork

    Ceramics

    Painting

    NATURE

    Gardening

    Animals

    Pioneer projects

    Council Fires

    Barbecue

    PHOTOGRAPHY

    LIBRARY

    TUTORING

    (by special arrangement)

    Languages

    Mathematics

    Science

    It appears, therefore, that academic subjects are available only by special arrangement, and not as part of the regular curriculum. Judging by defendants’ advertising, it is evident that the project which they intend to operate is a summer day *1020camp and not a school. Such use is not authorized by the present zoning of the property nor by the variance issued to the defendants.

    The motion is, accordingly, granted to the extent of enjoining defendants from operating a summer day camp. Bond will be fixed in the sum of $1,000.

    Settle order.