Opinion
November 26, 1968
Appeal from a judgment of the Supreme Court, entered December 14, 1967 in Albany County, upon a special verdict rendered at a Trial Term, in favor of defendants. This case was previously before us ( Zautner v. Magony, 28 A.D.2d 791) and reference is made thereto for the facts and the recitation of the pertinent part of the zoning ordinance in question. We ordered a new trial to allow defendants to present evidence to establish their claim of a vested nonconforming use which was lacking since plaintiffs had made out a prima facie case even though defendants' building was actually under construction prior to the prohibitory amendment. A trial was had before the court with an advisory jury impaneled and resulted in judgment dismissing the complaint and removing the temporary restraining order and temporary injunction. Plaintiffs contend upon appeal that defendants failed to prove sufficiently substantial investment in the building to sustain its protection as a nonconforming use. We do not agree. Defendants had graded the land, had installed concrete footings and had begun to lay concrete blocks for walls on two adjoining sides for the proposed building which it was established was to be used for the special purpose of a mushroom plant. The record shows that there was no lack of good faith on the part of defendants, that labor and capital had been invested prior to the prohibition and that the proposed use was planned, not just contemplated. Certainly, where, as here, article XIX of the Zoning Ordinance (see Zautner v. Magony, supra, p. 792) specifically provides for the completion of a building "actually under construction" the "designed use" is also protected, otherwise, allowing completion would be meaningless and quite possibly punitive. Plaintiffs' claim that the jury charge was prejudicial is without merit since the jury was advisory only (see 4 Weinstein-Korn-Miller, N.Y. Civ. Prac., par. 4212.01). Judgment affirmed, with costs. Herlihy, J.P., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Aulisi, J.