Rumble v. Board of Education

27 Misc. 2d 939 | N.Y. Sup. Ct. | 1961

Irving L. Levey, J.

Petitioner seeks, pursuant to the provisions of article 78, to compel the respondent, Board of Education of the City of New York, to rescind its order to the effect that the public schools shall remain open on February 22, 1961. Apart from what appears to be a sound exercise of discretion on the part of the board, the contention that the petition is insufficient must be sustained (Education Law, § 3604, subd. 8). It is well settled that where the injury complained of is public in nature, an individual cannot maintain an action for an injunction or for any other relief unless he suffers a special injury different from that suffered by the public at large. Furthermore, the Board of Education not being a municipal corporation within the meaning of statute authorizing actions similar to the instant one, the respondent is not amenable to a taxpayer’s suit (Schnepel v. Board of Educ. of City of Rochester, 302 N. Y. 94; Cash v. Board of Educ. of City of N. Y., 201 N. Y. S. 2d 170; General Municipal Law, §§ 2, 51). The motion is denied and the petition is dismissed.