This is an action by property owners in Pelham Manor, Westchester County, to restrain the use by defendant of its property as a school for mentally retarded children in violation of a village zoning ordinance. Special Term and the Appellate Division agreed that the action might be maintained because there was proof that the property of plaintiffs was materially damaged in value by reason of defendant’s use of the property. The children here concerned, as we shall see, were mental defectives within the meaning of that term. (Mental Hygiene Law, § 2, subd. 9; cf. Excelsior Ins. Co. v. State of New York, 296 N. Y. 40.) It has also been established that defendant’s use of its property is a violation of the village zoning ordinance unless it is a continuation of a prior nonconforming use.
When the village zoning ordinance was adopted, the property now owned by defendant was owned by the Pelham Home for Children, Inc. (hereinafter called The Home), a domestic membership corporation, organized for a charitable purpose and subject to the jurisdiction of the Supreme Court of the State of New York and the then existing State Board of Charities. It was used as a convalescent home for children afflicted with cardiac conditions who remained at The Home and there received institutional care. The Home was not empowered to conduct a school. Due to the fact that the cardiac-conditioned children were receiving institutional care, educational facilities were required by statute to be furnished to them by the Educa*134tian Law of the State and were a charge upon the community of the domicile of the children. Thus section 3205 of the Education Law requires that “ In each school district of the state each minor from seven to sixteen years of age shall attend upon full time day instruction.” Pupils at The Home did not fall into the exceptions to that requirement. Section 3204 of the same law provides that ‘ ‘ A minor required to attend upon instruction by the provisions of part one of this article may attend at a public school or elsewhere. The requirements of this section shall apply to such a minor, irrespective of the place of instruction.” Section 3202 of the Education Law states that if the children are cared for in a duly incorporated institution for the care, custody and treatment of children, then the “ trustees or other authorities in charge of any such institution may contract with the trustees or board of education of the school district in which such institution is located for the secular instruction of such children. * * * If such children are not supported and maintained at the expense of a public welfare district, the cost of the secular instruction of such children in the school or schools in the district shall be a charge upon and shall be paid by the school district responsible for their instruction at the time of their admittance to said duly incorporated * * * institution for the care, custody and treatment of children.” The children were sent to The Home from Bellevue Hospital, a hospital located in New York City, and were treated as children domiciled in the city of New York. Therefore, a teacher taught the children, some of whom were bed cases, in The Home in Westchester County. That teacher was in the employ of and was paid by the New York City Board of Education and was subject to the board’s jurisdiction and control. That was not a school conducted by The Home, the owner of the premises. The Home had no charter power to conduct a school. There is grave doubt as to whether New York City had the power and authority to send one of its teachers to teach outside the limits of the city, but we need not consider that further.
As a result of the discovery and use of new drugs and medicines, there is no longer a sufficient number of cardiac cases to justify the use of The Home for cardiac-conditioned children. As a result, the building and grounds formerly used by The Home have been transferred to the present owner, *135the Association for the Help of Retarded Children, Inc. It operates a school for mentally retarded children who receive no medical care and who are brought to the school in the morning and return home in the afternoon. It seems quite clear that while the use by the Pelham Home for Children, Inc., was that of an institution for the care of children suffering from cardiac conditions it was not a school in any sense of the word, while the present use solely as a school and not as a home providing institutional care for children is not a continuance of the original nonconforming use. The children are of an I.Q. of between 30 and 50, which is lower than the I.Q. fixed for children who may be educated in specially formed classes in our public school system. A charge of $35 per month is made for the schooling of each child. Section 202- of the Mental Hygiene Laiv provides that an institution such as that of defendant must be licensed. Section 1122 of the Penal Law provides for prosecution when a license is not obtained. The institution is not licensed under section 202 of the Mental Hygiene Law.
The whole purpose of the zoning law is to have uniformity of use within the various zones. Nonconforming use is forbidden unless the nonconforming use is a continuation of an identical use as it existed prior to the zoning statute. The statute, as quoted in the complaint, reads: “ A change of ownership or tenancy shall not be deemed a discontinuance of a nonconforming use provided the subsequent use is identical with the non-conforming use of the prior owner or tenant.” (Emphasis supplied.) (See Matter of Furman Ave. Realty Corp. v. Board of Standards & Appeals of City of N. Y., 299 N. Y. 768.) If there be such prior nonconforming use, its continuance is permitted. It seems clear to us, and cannot be questioned, that the use of the premises by The Home was never a use as a school. The Home had no charter power to conduct a school. The present defendant is lawlessly conducting an unlicensed school on the premises now and that is a use which was never made of them before the zoning statute. The finding by the Appellate Division that the present use of the premises by the defendant is the same as one of the uses that was made of the premises by the former owner, viz., a school, is without evidence to support it and the present use of the property is not a continuance of any nonconforming use by the former *136owner. Even if it were, it was clearly not a change to an identical use.
Accordingly the judgment appealed from should be reversed, and the judgment of the Special Term should be affirmed, with costs in this court and in the Appellate Division.
Desmond, Dye and Froessel, JJ., concur with Lewis, Oh. J.; Conway, J., dissents in an opinion in which Fuld and Van Voorhis, JJ., concur.
Judgment affirmed.