#### The People of the State of New York, Plaintiff, *v.*Cherry Lane Holding Corp., Anthony Sonsini, President, Defendant.

District Court of Suffolk County, Fifth District,

February 2, 1971.

*Burton Mars, Town Attorney (Bernard Gallan*of counsel), for plaintiff. *Arthur G. Briggs*for defendant.

Rockwell D. Colaneri, J.

The above matter was submitted to this court on an agreed statement of facts. The defendant is charged with a violation of article IV", section P-1.3, of the Revised and Codified Zoning Ordinance of the Town of Islip, in that the defendant “ did cause, allow and permit the erection of an ice making machine on the premises located at 117 East Main Street, East Islip, New York, without first obtaining a building permit from the Director of Building and Housing, as set forth in aforesaid Revised and Codified Zoning Ordinance, Town of Islip.”

A survey map of the property, as well as a photograph of the ice making machine, was submitted to the court. The survey map indicates that the ice making' machine is located on the southeast corner of the property 10.8 feet from the northerly side of East Main Street, also called Montauk Highway. The dimensions of the said machine are 5.78 feet by 5.85 feet, and the height, which the court estimates from the photograph, is approximately 6 feet. The photograph discloses that the said machine is a vending machine into which an individual *806may place some coins and receive a bag of ice cubes in return.

Section P-1.3 of the Revised Ordinances provides: “No building or structure shall be erected or altered until a building and/or plumbing permit heretofore has been issued by the director. All applications for such permits shall be in accordance with the requirements of this Ordinance and except upon written order of the Board of Appeals no building permit or certificate of occupancy shall be issued for any building or structure where said construction, alteration or use thereof would be in violation of any of the provisions of this Ordinance. ’ ’

The question before the court and that which this court must determine is whether or not the ice making machine is realty to come within the purview of this ordinance. Is the ice making machine a. building or structure within the contemplation of the ordinance?

Article I of the Revised Ordinances contains definitions of building and structure:

“ *Building*— a structure having a roof supported by columns or wall, and when supported by a party wall without openings, it shall be deemed a separate building.”

“ *Structure*— an assembly of materials forming a construction of component structure parts for occupancy or use, including building. ’ ’

Another examination of the photograph discloses that the machine in its entirety is made out of metal, has a roof on it, but has no supporting columns. The walls are metal but are not walls in the sense as used in the building trades. It is one compact unit, and cannot be occupied by any person or animal. It also appears from the photograph that the machine is not attached, fixed or implanted in the ground in any way.

When this court queried the Assistant Town Attorney if gum ball machines and/or cigarette machines located outside of a building (a gasoline station for instance) would require a permit, the answer was “no.” From the evidence before this court, it appears to this court that the subject ice making machine is not realty, but is personalty and does not come within the purview of the ordinance. It is not a building or structure within the contemplation of the ordinance. The owner of the said machine could easily back a truck up to it, disconnect the electrical plug, lift the machine onto the truck and drive it away.

The defendant is found not guilty and the information is dismissed as a matter of law.