which investigated the questions of the fare to be charged, the service to be rendered, the transfer facilities, the financial ability of the companies and the compensation to be paid to the city. The board of estimate and apportionment has exercised its discretion, and, acting in a legislative capacity, has granted these franchises. There is no charge of fraud or bad faith or collusion on the part of the members of said board contained in the complaint therein, and there is no evidence before the court of fraud or bad faith or collusion. The court therefore is without power to interfere in any way with the granting of these franchises.

The application for the injunction sought is therefore denied, with $10 costs.

(132 Misc. Rep. 82)

RICE et al. v. VAN VRANKEN.

Supreme Court, Trial Term, Schenectady County. May 11, 1928.

1. Constitutional law 101-In absence of actual construction before zoning ordinance became effective, expenditures for plans and specifications and financing did not give vested right to erect buildings violating ordinance.

Where there was nothing in zoning ordinance saving existing building permits, and no actual construction work had been commenced when ordinance became effective, expenditures and obligations incurred for plans and specifications, financing, and building materials in reliance on such permits before and subsequent to enactment of zoning ordinance were insufficient to give owner a vested right to erect buildings in violation thereof.

2. Municipal corporations 122 (2)-One attacking validity of zoning ordinance has burden of proof.

One attacking zoning ordinance as confiscatory, unreasonable, and unconstitutional has burden of overcoming presumption of constitutionality by showing that ordinance is unconstitutional as matter of law, and that there is no permissible interpretation justifying its adoption as a reasonable exercise of the state's police power.

3. Municipal corporations 590-Large measure of police power has been delegated to cities for protecting life, health, and safety of citizens,

The police power is founded on the law of public necessity, and, while primarily inhering in the state as an attribute of sovereignty, a large measure has been delegated to cities for purpose of protecting the life, health, and safety of citizens.

For other cases see same topic & KEY NUMBER in all Key-Numbered Digests & Indexes

(229 N.Y.S.)

4. Municipal corporations 601-Zoning authorities may exclude apartment houses from residence districts, and make other regulations therefor (General City Law, § 20, subds. 24, 25).

Under General City Law, § 20, subds. 24, 25, zoning authorities have power to establish residential districts, and to make such classifications effective by adopting regulations conducive to the welfare, health, and safety of the residents thereof, and to exclude apartment houses therefrom.

5. Municipal corporations 625-Zoning ordinance held not so arbitrary or unreasonable as to be invalid.

Zoning ordinance dividing city into districts, among others, single family residence districts, two family residence districts, and multiple dwelling districts, held not, as a matter of law, so arbitrary and unreasonable as to be invalid, nor to deprive an owner in such a district of his inherent right to use his property.

6. Equity 1-Absence of precedent is no obstacle to exercise of equity jurisdiction.

The absence of a precedent presents no obstacle to the exercise of the jurisdiction of a court of equity, power to make a precedent not being exhausted, and precedent being useful only so far as it points the way in which principles have been applied.

7. Equity 46-To divest court of equity of jurisdiction, remedy at law must be plain, adequate, and complete.

To divest a court of equity of jurisdiction, the remedy at law must be plain, adequate, and complete.

8. Injunction

85(1)—Property owners held entitled to maintain action to enjoin construction of apartment houses in residence districts; remedy at law being inadequate.

Property owners in immediate vicinity of defendant's property held entitled to maintain action in equity to enjoin defendant's construction of apartment buildings in residence districts zoned for single family and two family residences, as against contention that remedy at law by proceeding against building inspector charged with enforcement of ordinance was adequate.

Action by Edwin W. Rice, Jr., and others against George W. Van Vranken. Judgment for plaintiffs.

Naylon, Maynard, Bates & Smith, of Schenectady, for plaintiffs. Borst & Smith, of Schenectady (Michael D. Reilly, of Albany, of counsel), for defendant.

HEFFERNAN, J. The plaintiffs have brought this action for a permanent injunction restraining the defendant from erecting

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 229 N.Y.S.-3

apartment houses upon land owned by him at the corner of Union avenue and University place in the city of Schenectady, and on premises adjoining, on the theory that the same is in violation of a zoning law. Plaintiffs are the owners of, and occupy, one-family residences adjacent to, and in the immediate vicinity of, defendant's property. On June 4, 1927, permits were issued to defendant according to the provisions of the building code of the city for the erection of the structures in question. The plans upon which the permits were issued called for the construction of four apartment houses, consisting of three stories and a basement, and the alteration of defendant's residence, so as to provide about 36 apartments, including a number of laundries, and with provision in the basement for a motor garage designed to house 32 cars. Under the then existing building code, the defendant had six months from the date of the permits within which to commence operations thereunder. No question has been raised regarding the regularity or validity of these permits when issued. Prior to their issuance, however, and on May 17, 1927, the zoning ordinance in question was introduced in the common council of the city, and was duly adopted by that body on June 7, 1927, and became effective two weeks thereafter. This ordinance divides the city into seven districts, among others, A, a single family residence district, B, a two-family residence district, and C, a multiple dwelling district. The properties of all the parties concerned are within districts A and B. Although defendant had made expenditures of money for plans and specifications, for financing the proposed apartment houses, and for building materials, neither the work of construction nor any excavation had been commenced by him under the permits until more than five months after the effective date of the ordinance.

[1] Defendant contends that the ordinance was not retroactive, and that it had no effect on valid permits issued prior thereto, and that under the authority thereof he has acquired vested rights of which he cannot be deprived. There is nothing in the zoning ordinance to save existing permits. In view of the fact that no work had been commenced and no building erected or in course of construction by defendant when the ordinance became effective, the expenditures made and the obligations incurred by him in reliance upon such permits, prior and subsequently to the enactment of the zoning ordinance, are insufficient to give him a vested right to erect these apartment houses in violation thereof. Fox Lane Corporation v. Mann, 243 N. Y. 550, 154 N. E. 600; People ex rel. Publicity

(229 N.Y.S.)

Leasing Co. v. Ludwig, 218 N. Y. 540, 113 N. E. 532. The cases cited by the learned counsel for defendant are clearly distinguishable. Evidently the test in each case as to whether a holder of a permit has acquired vested rights thereunder is, not whether he has spent much or little in reliance upon it, but rather whether there has been any tangible change in the land itself by excavation and con

struction.

[2, 3] The statute (General City Law, § 20, subds. 24, 25) authorizes the city to adopt zoning regulations. Defendant contends, however, that the ordinance in question is confiscatory, unreasonable, unconstitutional, and not a proper exercise of the police power. He has the burden of overcoming the presumption of constitutionality applicable to such an ordinance. He must demonstrate that, as a matter of law, the regulations are unconstitutional, and that there is no permissible interpretation which justifies its adoption as a reasonable exercise of the police power of the state. Wulfsohn v. Burden, 241 N. Y. 288, 150 N. E. 120, 43 A. L. R. 651. The police power is founded on the law of public necessity, and, while primarily it inheres in the state, and is an attribute of sovereignty, a large measure has been delegated to our cities for the purpose of protecting the lives, health, and safety of the citizens. It should be responsive to the needs and conditions of the community. Our modern complex civilization, with its changing conditions and requirements, with increasing regulatory and restrictive legislation, has expanded its application to new subjects and demands. With the political, economical, and social development of a community, the police power also develops to meet the changed and changing conditions. The preservation of the public health is the most important governmental function.

[4] Before the adoption of this ordinance, the territory now included in the A and B districts was almost exclusively devoted to, and occupied by, one and two family houses. It was the intent and purpose of the legislation to continue the character and purposes already established, and to limit these districts to residences of that class. It has been definitely settled that the zoning authorities have power to establish residential districts and to make such classifications effective by adopting such regulations as would be conducive to the welfare, health, and safety of the residents thereof, and to exclude apartment houses therefrom. Wulfsohn v. Burden, supra; Lincoln Trust Co. v. Williams Bldg. Corporation, 229 N. Y. 313, 128 N. E. 209. The evidence in this case shows that the ordinance

under consideration was prepared after a most careful and extensive study by the planning commission and the expert engineers engaged by it. It was given wide publicity prior to its passage by the common council, and it is quite significant that at the public hearing thereon not a single objection was raised against it. It seems to me that the ordinance is a valid exercise of the police power of the state in the interest of public health and safety. The defendant has failed to establish by competent proof that it is objectionable in any respect.

The arguments which he urges against it, with a single exception, were all made in the Wulfsohn Case, and were so fully and completely answered by Chief Judge Hiscock, in his opinion, that to refute them again is but to slay the slain. The only objection of defendant that requires discussion is his criticism that this ordinance provides for the segregation of residence districts in one-family, two-family and multiple dwellings, and that by this method the city has deliberately attempted to separate the people who can afford to live in one-family houses from those whose necessities oblige them to live elsewhere. In this connection he charges that his property has been unreasonably divided between the one and two family districts, and that the entire square in which his land is located is classified into three districts. In this he is evidently mistaken, because the ordinance in section 21, subd. (c), provides otherwise. It can hardly be doubted that the segregation of residential, business, and industrial buildings, where light, air, space, and health can be secured as normal living conditions, increases the safety and security of home life, and makes a better environment for the promotion and perpetuation of the happiness and contentment of the people. Defendant argues that the regulations in this case depend entirely upon æsthetic considerations. The results which they are designed to accomplish are material rather than æsthetic in their nature. The Supreme Court of the United States has given its approval to the views of the Massachusetts Supreme Court that æsthetic considerations might be considered as auxiliary of what thus far have been regarded by the courts as more effective and sufficient reasons. Welch v. Swasey, 214 U. S. 91, 108, 29 S. Ct. 567, 53 L. Ed. 923; Wulfsohn v. Burden, supra. As a matter of fact, æsthetic considerations are relative. Discordant and unsightly surroundings may be just as distressing to people of keen sensibilities as that which is offensive and unsanitary. It is not unreasonable to say that the health and general physical and mental walfare of society would be promoted by single family residences. Increase in fresh air, free