Monsey Manufacturing Co. v. Ocko

In an action by three taxpayers pursuant to statute (Town Law, § 268, subd. 2), to enjoin the violation of a zoning ordinance of the Town of Ramapo, the plaintiffs appeal from a judgment of the Supreme Court, Rockland County, rendered December 20, 1958 upon the decision of an Official Referee, after a nonjury trial before him, dismissing the complaint on the merits. By this court’s prior decision of November 27, 1961 (14 A D 2d 925), the judgment was reversed and an injunction granted in certain enumerated respects against the then named defendants, Florence Ocko and Samuel Ocko, husband and wife. Thereafter, on motion of Florence, who apprised the court for the first time that her husband had died before the appeal had been heard, we vacated our decision insofar as it pertained to the deceased defendant, substituted his wife Florence as the executrix of his estate, directed that the appeal be reconsidered as to such executrix and granted permission to file additional briefs (15 A D 2d 951). Such briefs have been filed; the appeal has been reconsidered. Upon reconsideration, the appeal, insofar as it concerns the substituted defendant, Florence Ocko, as executrix of the estate of Samuel Ocko, deceased, is dismissed, without costs; and the action as against such substituted defendant is directed to be discontinued, without costs. With respect to the deceased Samuel Ocko or his estate, the appeal and the action have now been rendered academic. It appears that he had been originally joined as a party defendant to this action only because he was the one who managed the farm and cold storage warehouse (owned solely by the codefendant Florence Ocko), which was the situs of the zoning ordinance violations. Since such management terminated upon his decease, there is no longer any necessity for an injunction against him or his estate. Beldock, P. J., Ughetta, Kleinfeld, Christ and Hill, JJ., concur.