
    Town of Islip, Respondent, v. F. E. Summers Coal & Lumber Company, Inc., Appellant, and Others, Defendants. In the Matter of the Application of F. E. Summers Coal & Lumber Company, Inc., Appellant, for a Peremptory Writ of Mandamus against Warren C. Haff, as Town Clerk of the Town of Islip in Suffolk County, New York, Respondent.
   Judgment reversed upon the law and the facts, with costs to appellant, and judgment directed for the appellant, with costs. The question here involves the constitutionality of the Zoning Ordinance adopted by the town of Islip, pursuant to article 17-C, sections 349-0 to 349-w, of the Town Law, by resolution adopted on the 11th day of August, 1928, enacting a Zoning Ordinance for that portion of the village of Islip situate on the southerly side of Montauk highway west of Cedar avenue, affecting the premises in question. The property is in a business use district under the Zoning Ordinance, which ordinance requires a ten-foot setback. The building is in the course of construction, approximately on the property line. By the judgment, the appellant is enjoined from erecting its building because it violates the Zoning Ordinance, and its petition for an alternative writ of mandamus is dismissed. We are of opinion that, upon the record before us, the provision of the Zoning Ordinance requiring a setback of ten feet is arbitrary and unreasonable and, therefore, does not withstand the test of constitutionality. Findings of fact and conclusions of law inconsistent with this decision are reversed, and new findings will be made. Lazansky, P. J., Young, Kapper, Hagarty and Tompkins, JJ., concur. Settle order on notice. 
      
      Added by Laws of 1926, chap. 714.— [Rep.
     
      
       Adopted April 11, 1928, effective May 1, 1928, as amd. Nov. 14, 1928.— [Rep.
     