President of Ossining v. Meredith

On.the appeal by plaintiffs, judgment modified on the law and the facts by striking out the second [851] ordering paragraph, and inserting in the first ordering paragraph the word “ trailers ” immediately preceding the words “ freight trucks As so modified, the judgment, insofar as appealed from, is unanimously affirmed, with costs to plaintiffs. The following new findings are herewith made: “Since January 1, 1946, the defendants have caused their tractors to enter and leave the lot daily, except Sundays, between the hours of 4 a.m. and 10 p.m., in connection with the use of .their trailers; that the operation of connecting a tractor to a trailer consumes about ten minutes, during which time the tractor’s motor is raced; that the racing of two or three such motors at the same time produces a very loud noise, and at times as many as four tractors have been in operation at the same time; that the racing of the motors also causes vibration, which is transmitted to neighboring dwellings; and that the non-conforming use of the subject parcel by defendants’ predecessor in title involved only very slight noise and no vibration.” Finding No. 11 is reversed. There is no support in the record therefor. On the contrary, the testimony of defendant Meredith indicates that the small lot on the adjoining parcel has not been used for storage of trailers. In our opinion, the storing or parking of trailers, freight trucks and buses, and the use of tractors in the manner as found above, is not a continuation of the nonconforming use of the premises for the storing of poles, reels of cable, pipe and other equipment, other than vehicles in connection with which trucks entered the lot for the purpose of removing such materials from time to time and not daily. Conclusion of law No. 2 is disapproved; and this court adds to conclusion of law No. 1 the provision that the storage of trailers and the use of tractors in connection with such storage on the lot, are also violations of the zoning ordinance and that plaintiffs are entitled to judgment against defendants enjoining such use. Any other findings and conclusions which may be inconsistent with the foregoing are also reversed and disapproved. Present — Nolan, P. J., Carswell, Adel, Sneed and Wenzel, JJ. Settle order on five days’ notice. [190 Misc. 142.]