220 A.D. 695 | N.Y. App. Div. | 1927
The present system under which these park lands are operated clearly diverted them from, a park use. Individuals were permitted to secure continuous tenure of plots of ground for years at a time, upon which substantial structures were erected and in fact permanently ma'ntained. There has been open and notorious traffic in the purchase and sale of these sites with the accompanying permits. One licensee, at least, has assumed the right to sell his bungalow and its incidental privileges for as much as $1,100, and the transaction as proposed clearly contemplated, at least in so far as the original licensee is concerned, the transfer of permanent vested rights. It is proper, therefore, that an injunction should issue against these abuses.
Even the section of the Greater New York Charter, and the ordinances adopted pursuant thereto, relied upon by the defendants, and under which they claim to have acted (Greater N. Y. Charter, § 610, as amd. by Laws of 1913, chap. 333; Baldwin’s New York Code of Ordinances, 1927, chap. 17, art. I, § 14-a; chap. 17, art IV, Camp Sites■ — Borough of The Bronx), do not contemplate the grant of permanent privileges and the use in connection therewith of structures in any sense permanent in character. •
We cannot say, however, as a matter of law, that the city should be restrained from issuing camping permits under such conditions as will preserve the park character of these lands and their general and impartial allocation to as many citizens as can fairly be permitted to enjoy them. The responsibility for devising such a plan rests in the first instance upon the administrative authorities and not upon the court. We do not here determine what it must be to conform with the law. It would seem that it should be predicated at least upon the following considerations:
(1) Purely temporary tenure instead of the issuance of a permit for the entire summer, the length of tenure to be reasonably determined by the city authorities in the light of the number of applicants who seek accommodation.
(2) A fair and impartial method of issuing these permits to citizens generally.
(4) Compliance with the regulations of the health department.
(5) Rigorous and honest enforcement of the prohibition against traffic in these permits.
In view of the foregoing we are not in a position on the papers before us to modify the order appealed from in the respects indicated. However, since this is only a preliminary injunction, the order will be modified by striking therefrom the mandatory provisions for the removal forthwith of the present structures. It will also be modified by giving to the. defendants the right to apply at Special Term for a modification of the order so as to permit the adoption of a plan and practice that will preserve the park character of the lands in question in accordance with law.
The order should be modified as here indicated, and as so modified affirmed, without costs.
Present — Dowling, P. J., Finch, Martin, O’Malley and Proskauer, JJ.
Order modified as directed in opinion and as so modified affirmed, without costs.
