7 Misc. 2d 901 | N.Y. Sup. Ct. | 1957
The defendants move to dismiss the complaint under subdivision 4 of rule 106 of the Buies of Civil Practice, on the ground that it fails to state a cause of action.
The court, taking judicial notice of matters of public record (Brown v. City of New York, 213 App. Div. 206, affd. 241 N. Y. 96), and treating such facts as if embodied in the complaint (City of Buffalo v. New York Central R. R. Co., 125 Misc. 801, affd. 218 App. Div. 810, affd. 271 N. Y. 658), finds that the procedure for closing the street was conducted in accordance with the provisions of section E15-1.0 et seq. of the Administrative Code of the City of New York; that preliminary to the closing, the city’s Planning Commission held a hearing on the proposed
This suit, being a taxpayer’s action, the complaint may be sustained only upon allegations of ultimate facts which, if true, would be sufficient to establish that the municipality lacked power to do the act complained of, or that the act was corrupt or fraudulent involving waste or public mischief. (Kittinger v. Buffalo Traction Co., 160 N. Y. 377; Kraushaar v. Zion, 135 N. Y. S. 2d 491.) No charge of corruption or fraud is made, but it is asserted that the city lacked power to close the street for the purpose of turning it over to a private firm for its exclusive use for parking. The provision of the Administrative Code of the City of New York, relied upon to sustain this position, is section E15-3.0 which provides in part, that “ The city may authorize the closing or discontinuance of such streets therein, in whole or in part, as it may be deemed necessary in order to more effectually secure and preserve the regularity and uniformity of the streets therein, or where other public necessity requires the closing or discontinuance of such streets.” (Emphasis supplied.)
The resolutions to discontinue and close the street were legislative in character. (Kaskel v. Impellitteri, 306 N. Y. 73, 80; Matter of Asness v. City of New York, 5 Misc 2d 779.) They expressed the purposes for which the street was to be closed and discontinued, namely, to close an unnecessary street so that the area could be released to the owner of the abutting property for industrial expansion. Prior to their adoption, the Planning Commission had reported to the Mayor ‘ ‘ The map provides for the elimination of one short block of Stanwyx Street * * * to permit the integration of the eliminated area with abutting property for industrial expansion.” “ Courts accept as fact that which is expressed in the act to be the legislative purpose unless from the face of the act or from facts which may be judicially noticed it is made to appear that the taking is not for the expressed purpose.”
The determination as to whether or not the street was unnecessary and whether the eliminated street area should be integrated with abutting private property for industrial expansion were matters which the Legislature delegated to the municipal authority and the courts must assume that its officials acted in good faith. Their action, whether wise or unwise, may not be interfered with in the absence of a showing that the same was corrupt, irrational or baseless (McCabe v. City of New York, 213 N. Y. 468, 481; Kaskel v. Impellitteri, supra).
As above stated, the fact that private interests ultimately may become the owners of the area closed “ does not convert ,the main purpose of the legislation from a public to a private one.” (Matter of Mayor of City of New York, 28 App. Div. 143,153, affd. 157 N. Y. 409.) In Meyer v. Village of Teutopolis (131 Ill. 552), quoted in Matter of Mayor (supra) at page 153, the court said: “ ‘Nor can it be said that the validity of the proceedings by which a street is vacated is at all affected by the fact that the land embraced within the street thereby becomes public property * * * Nor does it seem material that the vacation is made with the view or intention of vesting the adjoining proprietors with the ownership of the land embraced within the street. That merely goes to the motive by which the act of vacation is performed; and in that, as in all legislative acts, the motives by which the legislative body is actuated are immaterial and cannot be inquired into.’ ” (To the same effect, see Bleecker Luncheonette v. Wagner, 141 N. Y. S. 2d 293, affd. 286 App. Div. 828.)
Since there is no sufficient allegation that the city lacked the power to close the street, or that there was insufficient basis for the exercise of the power, and since it is not alleged that there was any fraud or corruption involved, the complaint fails to state a cause of action, and, accordingly, is dismissed, with leave to plaintiff to serve an amended complaint within 20 days. Submit order.