18 N.Y.2d 152 | NY | 1966
On an agreed statement of facts there was submitted to the Appellate Division this controversy: Is plaintiff telephone company entitled to reimbursement from defendant city for the expense of relocating in another street the company’s telephone lines and other facilities which had lain in a public street, the relocation having been made necessary by the city’s closing part of the street and using the discontinued street section as part of the site for a “ middle income housing project” which site after assemblage thereof by the city was conveyed by the city to a limited dividend corporation to develop it as a housing project financed pursuant to the National Housing Act? The Appellate Division, answering in the affirmative, considered that the determinative issue before it was “ whether the renewal project, undertaken by the city and thereafter conveyed to the private interest, constitutes a governmental function or a proprietary one.” Citing two principal authorities (Matter of City of New York [Gillen Place], 304 N. Y. 215, and City of New York v. New York Tel. Co., 278 N. Y. 9) the court concluded that in acquiring land to be transferred to a private corporation the city acted solely in a proprietary capacity. On that same theory the City of New York was held, in the two cited cases, so to have acted when it closed streets for a bus garage and for a subway entrance. In those two instances, as here, held the Appellate Division, the purpose of the street closing was for a public purpose and in the public
Plaintiff telephone company argues that what it calls its " contract " with the City of Binghamton gives it a property right to be compensated for the destruction of its rights in the street unless the destruction necessarily results from the performance by the city of a governmental function. The city replies that under New Yorli law (see General Municipal Law, arts. XV, XV-A, XV-B, and particularly the policy statement of § 501) and by the decisions of this court (Matter of Murray v. La Guardia, 291 N. Y. 320; Kaskel v. Impellitteri, 306 N. Y. 73 and Cannata v. City of New York, 11 N Y 2d 210, app. dsmd. 371 U. S. 4) the razing of substandard buildings is the performance of a high and essential governmental function even though the deared land is ultimately to be turned over to private developers.
The distinction between ‘ ‘ governmental function ’ ’ and ‘ ‘ proprietary function” is a sort of abstraction difficult to make meaningful in a day when municipalities continually find new ways to exercise police power in their efforts to cope with the pressing needs Of their citizens. Actually, to decide this case it is not necessary to uphold or reject Matter of City of New York (Gillen Plaoe) (304 N. Y. 215, supra) or City of New York v. New York Tel. Co. (278 N. Y. 9, supra). For present purposes those decisions can be limited to their own facts and to their special holding, that is, that when the city chooses to operate what are commonly called “ public utility ” businesses the city’s operation thereof has no Such priority over privately owned utility companies as to subject the latter to compulsory removal of their facilities without compensation in aid of the municipal operation. So analyzed, those cases are not controlling here. Bather-, the present submission requires us to determine whether or not this particular enforced removal of the telephone company’s property from this particular street was or was not subject to the unquestioned common-law rule against compensation for such expenses. The common-law rule, based on public considerations of a high order, has never been doubted or questioned and any exceptions thereto should be carved, out with reluctance and from compelling considerations
The city’s purpose in closing off this street is fully set forth in the statement of agreed facts. Before authorizing the general project the city “ undertook extensive studies ” of the existence of urban blight in the city including the area which became this project. Such studies included street pattern, flow of traffic, condition of buildings in the general area and social and economic effects thereof on the community. The resolution thereafter adopted by the city determined among other things that the project area was substandard and insanitary, a blighted area predominantly residential, a slum, deteriorated and deteriorating and characterized by declining property values, tax delinquency, low average rents, the existence of social problems,
We see no controlling importance to the fact that if plaintiff itself does not pay for this relocation cost it will become part of the total slum clearance cost of which the city pays a small fraction and the rest being made up by the Federal and State Governments. Nor do we see significance in the other fact that
The order should be reversed and judgment directed for the defendant dismissing the claim, with costs in this court and in the Appellate Division.
Order reversed, etc.