167 A.D. 457, Bunyan v. Commissioners of Palisades Interstate Park

Citation167 A.D. 457
Party NameHELEN A. BUNYAN, as Executrix of and Trustee under the Last Will and Testament of JAMES BUNYAN, Deceased, and Others, Respondents, v. COMMISSIONERS OF THE PALISADES INTERSTATE PARK and Others, Appellants, Impleaded with THE CONKLIN & FOSS COMPANY, Respondent.
Case DateMay 05, 1915
CourtNew York Supreme Court Appelate Division, Third Department

Page 457

167 A.D. 457

HELEN A. BUNYAN, as Executrix of and Trustee under the Last Will and Testament of JAMES BUNYAN, Deceased, and Others, Respondents,

v.

COMMISSIONERS OF THE PALISADES INTERSTATE PARK and Others, Appellants, Impleaded with THE CONKLIN & FOSS COMPANY, Respondent.

Supreme Court of New York, Third Department.

May 5, 1915

Page 458

APPEAL by the defendants, Commissioners of the Palisades Interstate Park and others, from an order of the Supreme Court, made at the Madison Special Term and entered in the office of the clerk of the county of Otsego on the 3d day of February, 1915, which sent to a referee the questions of fact arising upon a motion for a temporary injunction herein, and adjourned the determination of the motion until such referee should have taken evidence and reported thereon.

COUNSEL

George A. Blauvelt, John F. Murtaugh, Joseph A. Kellogg and Joseph A. Warren, for the appellants.

Arnold & Cooke [Charles E. Hotchkiss, Lynn J. Arnold and Harold C. McCollom of counsel], for the respondents.

Page 459

SMITH, P. J.:

This action was originally brought by certain holders of bonds issued by the Conklin & Foss Company, which was a corporation engaged in quarrying upon certain land in the county of Rockland, in the State of New York, bordering upon the Hudson river. Thereafter all the bondholders and stockholders of the said corporation were made plaintiffs. The Commissioners of the Palisades Interstate Park have, pursuant to the statute, filed maps and published notice of their intention to condemn certain land adjoining the Hudson river upon Hook Mountain, which includes the land of the Conklin & Foss Company. This action is brought to enjoin such attempted condemnation, and the order here appealed from was made upon a motion for an injunction against the attempted condemnation pending the trial of the action.

These Commissioners assert their power to condemn under chapter 170 of the Laws of 1900, as amended and extended by chapter 691 of the Laws of 1906, and as further amended and extended by chapter 361 of the Laws of 1910. The land authorized to be condemned within these statutes is all situated either in the counties of Rockland or Orange in the Second Judicial Department. This injunction order is sought in the Third Judicial Department. It is first claimed by the Commissioners that under section 605 of the Code of Civil Procedure these State officers cannot be enjoined by a court sitting in the Third Judicial Department. It is not perfectly clear whether these be State or local officers. Assuming, however, that they may be deemed to be State officers, as is more probable, they are required to advertise in the city of Albany; to make their reports to the Legislature there sitting, and to file their records in the office of the Secretary of State. The location of any State Board is presumptively at the capital of the State. If the Attorney-General were seeking an injunction against this Board it would be unreasonable to require him to go either to the First or Second Department to prosecute the injunction. The Third Department is primarily the official department of the State, and an injunction granted in that department as against the State Board is, therefore, authorized.

The next ground of challenge to this application is that these

Page 460

bondholders cannot bring this action without first having applied either to the corporation or to the mortgage trustee, and only then upon the refusal of such trustee to act. The corporation clearly does not represent the bondholders. A judgment against the corporation would have no effect whatever as against the bondholders unless they were made parties to the action. The mortgage trustee represents them in a limited capacity. He has certain duties imposed by the trust mortgage. There is no express duty therein imposed to protect the bondholders from outside attack, and if a trustee thus appointed were held bound to protect the interests of the bondholders from any action which might impair the value of the security, such trustee would have duties far beyond any expressed in the trust instrument or ordinarily contemplated by those accepting such position of trustee. That this action may be brought by the bondholder without a request to the trustee would seem to be held in the action of Carter v. Fortney (170 F. 463), and this decision was further sustained by the United States Circuit Court of Appeals in the same action under the title of Fortney v. Carter (203 id. 454).

A more difficult question is raised by the contention of the Commissioners that these plaintiffs have full remedy for their grievances in the condemnation proceedings pending in the Ninth Judicial District, and with this complete remedy at law equity will not intervene in their behalf. To determine the question thus presented it is necessary to examine critically the nature of the condemnation proceedings as authorized by chapter 170 of the Laws of 1900. By section 4 of this act this Board of Commissioners was given power 'to select and locate such lands lying between the top of the steep edge of the Palisades and the exterior of the bulkhead line established by law upon the Hudson river, together with such separate parcels of unimproved lands lying on the front of the top of the Palisades from the New Jersey State line on the south to Piermont creek, near Piermont in Rockland county, on the north, as may in their opinion be proper and necessary to be reserved for the purpose of establishing a State park and thereby preserving the scenic beauty of the Palisades.' This land the Board was by section 5 of the act authorized to acquire if necessary

Page 461

by eminent domain. By section 6, before proceeding to acquire such lands the Commissioners were required to have made a map of such land, showing the boundaries and the names of the owners or reputed owners, and to ascertain as nearly as may be the fair value thereof. A copy of this map was required to be filed with the Secretary of State, and also with the clerk of Rockland county. By section 7 of the act it is provided that after the filing of the said map said Commissioners should publish for twenty successive weeks, both in the State paper and in a paper printed and published in the county of Rockland, a notice declaring that said Commissioners intend to appropriate said land and hold the same in trust for the People of the State of New York, and that said Commissioners intend to apply to the Supreme Court in the Second Judicial District on the day specified for the appointment of three freeholders, residents of the State of New York, to act as commissioners of appraisement, to ascertain and report the just compensation to be paid therefor. By section 8 it is provided that upon the day designated in said notice, or some other day to be named by the said court, 'the said court shall hear the application of the said commissioners, and shall appoint three disinterested persons, freeholders and residents of the State of New York, commissioners of appraisement.' The statute then provides for a hearing by the commissioners of appraisement, for their report and the confirmation thereof, and for an appeal from said appraisement. The effect of the amendments of 1906 and 1910 to said statute, as far as this question is involved, is only to extend the power of the...

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14 practice notes
  • 74 N.Y.2d 718, Waldo's Inc. v. Village of Johnson City
    • United States
    • New York New York Court of Appeals
    • June 15, 1989
    ...681, 291 N.Y.S.2d 926, aff'd, 23 N.Y.2d 807, 297 N.Y.S.2d 309, 244 N.E.2d 877; Bunyan v. Commissioners of Palisades Interstate Park, 167 A.D. 457, 466-467, 153 N.Y.S. 622). Upon this record, there can be no serious question that the proposed condemnation project will serve a public purpose.......
  • 216 N.Y. 104, In re Commissioners of Palisades Interstate Park
    • United States
    • New York New York Court of Appeals
    • October 29, 1915
    ...Buffalo, 189 N.Y. 163; Matter of Low, 208 N.Y. 25; Matter of City of New York, 163 A.D. 11; Bunyan v. Comrs of Palisades Interstate Park, 167 A.D. 457; Genet v. D. & H. C. Co., 113 N.Y. 472; Matter of City of Buffalo, 78 N.Y. 370; Granger v. Craig, 85 N.Y. 619; Ladd v. Stevenson, 112 N.......
  • 988 F.Supp.2d 212 (E.D.N.Y 2013), 13-CV-5612 (FB) (JMA), Cohen v. G&M Realty L.P.
    • United States
    • Federal Cases United States District Courts 2nd Circuit Eastern District of New York
    • November 20, 2013
    ...its power of eminent domain to acquire the site outright. It chose not to. Cf. Bunyan v. Commissioner of Palisades Interstate Park, 167 A.D. 457, 153 N.Y.S. 622, 628 (3d Dep't. 1915) (affirming the purchase of a quarry for the purpose of preserving the " scenic beauty" of the Huds......
  • 284 N.Y. 403, Vanneck Realty Corporation v. City of New York
    • United States
    • New York New York Court of Appeals
    • December 31, 1940
    ...Terner, Inc., 283 N.Y. 299; Kip v. N.Y. & Harlem R. R. Co., 6 Hun, 24; 67 N.Y. 227; Bunyan v. Commrs. of Palisades Interstate Park, 167 A.D. 457.) The city's power, under section 706 of the Charter, to acquire property for marginal street purposes is not destroyed or diminished by the p......
  • Request a trial to view additional results
14 cases
  • 74 N.Y.2d 718, Waldo's Inc. v. Village of Johnson City
    • United States
    • New York New York Court of Appeals
    • June 15, 1989
    ...681, 291 N.Y.S.2d 926, aff'd, 23 N.Y.2d 807, 297 N.Y.S.2d 309, 244 N.E.2d 877; Bunyan v. Commissioners of Palisades Interstate Park, 167 A.D. 457, 466-467, 153 N.Y.S. 622). Upon this record, there can be no serious question that the proposed condemnation project will serve a public purpose.......
  • 216 N.Y. 104, In re Commissioners of Palisades Interstate Park
    • United States
    • New York New York Court of Appeals
    • October 29, 1915
    ...Buffalo, 189 N.Y. 163; Matter of Low, 208 N.Y. 25; Matter of City of New York, 163 A.D. 11; Bunyan v. Comrs of Palisades Interstate Park, 167 A.D. 457; Genet v. D. & H. C. Co., 113 N.Y. 472; Matter of City of Buffalo, 78 N.Y. 370; Granger v. Craig, 85 N.Y. 619; Ladd v. Stevenson, 112 N.......
  • 988 F.Supp.2d 212 (E.D.N.Y 2013), 13-CV-5612 (FB) (JMA), Cohen v. G&M Realty L.P.
    • United States
    • Federal Cases United States District Courts 2nd Circuit Eastern District of New York
    • November 20, 2013
    ...its power of eminent domain to acquire the site outright. It chose not to. Cf. Bunyan v. Commissioner of Palisades Interstate Park, 167 A.D. 457, 153 N.Y.S. 622, 628 (3d Dep't. 1915) (affirming the purchase of a quarry for the purpose of preserving the " scenic beauty" of the Huds......
  • 284 N.Y. 403, Vanneck Realty Corporation v. City of New York
    • United States
    • New York New York Court of Appeals
    • December 31, 1940
    ...Terner, Inc., 283 N.Y. 299; Kip v. N.Y. & Harlem R. R. Co., 6 Hun, 24; 67 N.Y. 227; Bunyan v. Commrs. of Palisades Interstate Park, 167 A.D. 457.) The city's power, under section 706 of the Charter, to acquire property for marginal street purposes is not destroyed or diminished by the p......
  • Request a trial to view additional results