Lincoln Trust Co. v. Williams Building Corp.

Clarke, P. J. (dissenting):

The building zone resolution was adopted by the board of estimate and apportionment on July 25, 1916. It took effect at once, and, from that day, it. and the maps which were a part of it were matters of public record in the board of estimate. The power to pass this resolution was given by chapter 470 of the Laws of 1914 (adding to Greater N. Y. Charter [Laws of 1901, chap. 466], §§ 242a, 242b), as amended by chapter 497 of the Laws of 1916.

In my opinion the building zone resolution is not an incumbrance within the meaning of the contract. The resolution was obviously intended as a mere police regulation of business and premises. It is a police regulation such as the Tenement House Law or Building Code and numerous other regulations which are never mentioned in contracts and have never been held to be incumbrances. I, therefore, dissent from the opinion of the majority and vote to affirm the judgment appealed from.

Dowling, J., concurred.

Judgment reversed, with costs, .and complaint dismissed, with costs, and judgment ordered for defendant as directed in opinion. Order to be settled on notice.