I dissent upon the following grounds: Defendant, the owner of real property located at 75 and 79 Winthrop avenue, Albany, N. Y., appeals from an order denying his motion to dismiss the complaint of the plaintiff in an action brought to restrain the defendant from utilizing bis property for occupation by more tenants than is permitted by a zoning ordinance of the city. The complaint is assailed as not stating a cause of action.
The ordinance limits the number of families per acre within the zone in which defendant’s property is located. The argument of his counsel is addressed to the unconstitutionality of a'single sentence in the, ordinance: “The area of no plot shall for the purposes of this section be deemed to extend more than one hundred feet back from its street front.” Nothing appears to ndicate whether defendant’s property does or does not extend more than one hundred feet back from its street front. If his property is of no greater depth than that, he is not a party aggrieved and may not test the constitutionality of the sentence. If it appears upon the trial of the action that his property is of a greater depth than one hundred feet, a serious question will be raised as' to the right of the city in effect to confiscate the land back of the one-hundred-foot line. If that land may not be utilized for residential purposes in connection with the front part of the lot, it can be used for no purpose, as the area is limited to residences. The Legislature has granted to cities the right to regulate but not to confiscate.